New York Judge Sides with Apple in Privacy Battle over Accessing Encrypted Devices

A federal magistrate judge in New York, James Orenstein, recently denied a motion by the US government for an order under the All Writs Act (“AWA”) forcing Apple to unlock an iPhone containing encrypted data in order to assist with execution of a search warrant in a drug-related case in New York.

Judge Orenstein considered (i) the closeness of Apple’s relationship to the underlying criminal conduct and government investigation; (ii) the burden the requested order would impose on Apple; and (iii) the necessity of imposing such a burden on Apple.  He concluded that none of these factors justified imposing on Apple the obligation to assist the government in retrieval of data from a device that Apple does not own.  He also noted that the relief sought is unavailable because Congress has considered legislation that would achieve the same result, but has not adopted it. 

The AWA was successfully relied on in the San Bernardino case to secure Apple’s assistance with unlocking the iPhone of Syed Farook (recently reported in E-TIPS® newsletter here).  This point was not lost on Judge Orenstein.  He commented that a debate must happen among legislators who are equipped to consider the technological and cultural realities of a world that the drafters of the AWA – a law enacted by the First Congress in 1789 - could not have conceived.