N.Y. magistrate rules Apple can’t be forced to open an iPhone | McClatchy Washington Bureau

A federal judge in Brooklyn ruled Monday that the government cannot force Apple to unlock an iPhone – a decision that could be a blow against the FBI in its legal battle to get Apple to open the phone of San Bernardino shooter Syed Farook.

In both the New York and the California cases, the federal government argued that Apple is required to cooperate with law enforcement under the All Writs Act, a vague 1789 law granting courts power to issue orders not covered by other laws.

But unlike the magistrate in the San Bernardino case, U.S. Magistrate Judge James Orenstein of the Eastern District of New York sided with Apple, signaling that the legal outcome in the San Bernardino case is anything but certain.

“After reviewing the facts in the record and the parties’ arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government’s investigation against its will,” Ornstein found in a case in which the Drug Enforcement Administration wanted Apple to unlock an iPhone owned by a methamphetamine dealer.

Orenstein wrote that Congress must decide if tech companies should be required to open their devices to law enforcement. The government can’t use a nearly 220-year-old law to force Apple’s cooperation, he ruled. The ruling likely will give impetus to legislators like Democratic Sen. Dianne Feinstein of California to push for tougher legislation than the current favored course of a commission to study the issue.

“That debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive,” Orenstein wrote. “It would betray our constitutional heritage and our people’s claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789.”

The New York ruling is not binding on Magistrate Judge Sheri Pym in California as she considers Apple’s challenge of her court order telling the company to unlock the San Bernardino shooter’s iPhone.

But it is the first time that a judge has ruled that current law cannot be used to force a tech company to retrieve encrypted data for a law enforcement investigation.

Apple expressed a belief that the ruling “is going to have some persuasive effect for the magistrate in California.”

The California case is far more high profile, involving a terrorist who, along with his wife, killed 14 people in December. Legal analysts said it could go to the U.S. Supreme Court and will draw far more legal interest than the matter of a Brooklyn drug dealer’s phone.

The legal issues are largely the same, though. Orenstein noted in his ruling that Congress considered forcing tech company cooperation when it passed the Communications Assistance for Law Enforcement Act, which in 1994 set the rules for electronic eavesdropping. But Congress declined to do so, Orenstein wrote in his 50-page ruling siding with Apple.

Justice Department spokeswoman Emily Pierce said the department was disappointed by the ruling and would appeal.

Apple said the government is asking more of the company in the California case than the New York case. The New York case involved an earlier operating system, iOS 7, and Apple could access the data.

The iPhone used by the California shooter has an iOS 9 system. The company says it cannot bypass the security features the newer system without creating new software and essentially hacking its own device.

The judge’s ruling came a day before Apple general counsel and senior vice president Bruce Sewell was to testify on encryption before the House Judiciary Committee.

According to Sewell’s prepared testimony, he will argue that Congress needs to decide the encryption issue and not leave it to judicial interpretation of the 1789 law.

“The decisions should be made by you and your colleagues as representatives of the people, rather than through a warrant request based on a 220-year-old statute,” according to Sewell’s prepared testimony.