By now, many are aware of a showdown between Apple and the FBI. The FBI obtained a court order from a California judge requiring Apple to help the agency break into a phone belonging to one of the San Bernardino shooters. Apple has fought back by filing a motion to vacate the order, arguing that the order is unlawful and violates constitutional rights. Even before that fight started, the FBI was seeking a similar order from a Brooklyn judge to unlock a drug dealer’s phone. Today the judge has denied that request.
Many aspects of the FBI’s request in this case are similar to those in the San Bernardino case. In both cases the FBI is requesting that Apple’s assistance to break into a phone, although the phone in this case is an older version of the iPhone, so the exact technical assistance being requested is different. Another similarity is the fact that the entire basis of the FBI’s request in both cases is the All Writs Act, a law which grants courts the power to issue supporting orders to third-parties to assist in the execution of previously issued order.
The response by the two judges to the FBI’s requests were very different. While the California judge issued the order without input from anyone other than the FBI, the Brooklyn judge temporarily denied the order to give Apple a chance to weigh in the matter. When the FBI made the request back in October of last year, the judge expressed skepticism that the order could be authorized by the All Writs Act, and stated that the agency probably could not force Apple to help them break into the phone.
Unlike the San Bernardino case which requires Apple to write custom software to make it easier to bypass the encryption through brute force, the phone in this case is not encrypted. The level of assistance being requested has been provided by Apple in the past. In fact the government noted three examples when Apple has obeyed similar orders without objection. However there are numerous cases still to be decided where Apple is fighting the FBI’s requests, including the widely publicized one in California. This suggests Apple has changed its mind about cooperating with the government.
After hearing both sides, the judge has ultimately sided with Apple, and denied the order. The judge found this request to be a misapplication of the All Writs Act. The ruling states:
More specifically, the established rules for interpreting a statute’s text constrain me to reject the government’s interpretation that the AWA empowers a court to grant any relief not outright prohibited by law. Under a more appropriate understanding of the AWA’s function as a source of residual authority to issue orders that are “agreeable to the usages and principles of law,” 28 U.S.C. § 1651(a), the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it.
It remains to be seen whether this will impact the ongoing case in California. While this ruling has persuasive precedent, it is not binding, and the district court in California could rule a different way. It is entirely possible to get contradictory rulings in different regions of the country, which can only be harmonized by a ruling from the Supreme Court.
The full ruling can be seen here.
Was the Brooklyn judge right to deny the FBI’s request? Leave your comment below.