NY Judge Backs Apple in Encryption Fight, Encourages Dialogue

by Matt Klassen on March 2, 2016

backdoorIt was a different case, in a different jurisdiction, with different players, but an iPhone was again at the centre of yet another legal proceeding, with a federal judge in Brooklyn ruling on Monday that the U.S. government has no legal right to compel Apple to unlock a phone, ostensibly undermining the Department of Justice’s entire case against Apple in the ongoing encryption fight.

U.S. Magistrate Judge James Orenstein ruled earlier this week that the government did not have the legal authority to order Apple to disable the security of an iPhone seized in a drug related investigation, arguing that the 1789 All Writs Act, the centrepiece of the DOJ argument, could not be used in such a case, and that encryption standards were largely exempt from a 1994 update related to wiretapping laws.

While not directly related to the ongoing fight over unlocking the phone of one of the San Bernardino terror suspects, the ruling echoes much of what we’ve seen in defence of Apple so far, that while encryption is clearly an important, precedent setting issue that needs to be vigorously discussed and debated, those discussions and debates actually need to happen. As Magistrate Orenstein stated, “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.”

While the judge effectively destroyed the undergirding legal arguments surrounding the DOJ’s efforts to compel Apple to rebuild its iOS platform with backdoors to grant legal access, the ruling left the difficult questions at the heart of the encryption debate largely unanswered, whether or not, as Orenstein wrote, “the government’s legitimate interest in ensuring that no door is too strong to resist lawful entry should prevail against the equally legitimate societal interests arrayed against it here.”

That debate, the judge rightly noted, is not something for the courts to decide alone, but something to be vigorously and openly debated and discussed by “legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive.”

While having nothing directly to do with the San Bernardino case, and with fellow U.S. Magistrate Judge Sheri Pym, the judge in the San Bernardino case, stating that the decision will not impact her case, the NY court ruling establishes a precedent that will likely be very influential in Apple’s ongoing fight. More importantly perhaps, the decision comes one day before Apple’s top lawyer and the FBI are scheduled to present their cases before Congress.

The DOJ, for its part, has stated it is “disappointed” with Orenstein’s ruling, and will seek a decision from a higher court.

More to the point, isn’t this exactly the scenario Apple said would happen, that one request for access to an encrypted iPhone would soon turn into two, and four, and so on and so forth? If Apple is forced to unlock the phone of a terrorist, why not a drug suspect, or the family of a suspected criminal, or anyone for that matter? Further, when such access is available, what’s to stop far more intelligent people than our well-meaning law enforcement agencies from accessing those backdoors and increasingly initiating hacks on businesses and private citizens?

In a world where the cybercriminals rule, I would think that we would be working to close holes in security protocols, not open more. But again, all that needs to be part of an open discussion, one that involves Silicon Valley and competent legislators aware of the risks and ramifications of what they’re requesting companies like Apple to do. Let’s not pretend that some 200 year old law has any bearing on the complex issues surrounding security and encryption in our digital world.

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Written by: Matt Klassen. www.digitcom.ca. Follow TheTelecomBlog.com by: RSS, Twitter, Facebook, or YouTube.

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