A federal judge in Brooklyn has temporarily denied a request by law enforcement, who were seeking an order to force Apple to unlock a locked phone. The government is invoking the All Writs Act, a law which allows courts to compel third parties to assist authorities in executing a previously issued order by the court. However there are limitations on the act, and private companies cannot be forced to take actions that would be excessively burdensome.
The government cited a Supreme Court case where the court ruled that phone companies could be compelled to install a pen register in order to effect a search warrant. In his statement, James Orenstein explains why this case is different from the case cited. In that case, the phone company was forced to install a pen register in its own facility, but in this case the government wants Apple to tamper with some else's property. The phone does not belong to Apple, it belongs to the person under investigation.
The judge also notes that Apple is not a publicly regulated utility like a phone company. Apple has the right to promote its own business interests over the interests of law enforcement. Since encryption is a major selling point to customers, Apple has a business interest in not circumventing that encryption. Another distinguishing feature between the two cases is that in the Supreme Court case there was no other practical way to execute the warrant except to install the pen register. However in this case, the judge argues, they could compel the owner to unlock the phone under threat of sanctions, rather than forcing Apple to do it.
Another issue, which was mentioned in the footnotes, is that it may actually be impossible for Apple to comply with the request. If Apple is telling the truth about the latest version of their OS, they can't beat the encryption to unlock the phone. Some sources suggest that the phone in the case has an older version of the OS and can be unlocked by Apple if they choose. Even if it is possible, the judge still finds that this would probably put an unreasonable burden on them to carry it out. However, he did state the need for further information from Apple as to whether or not this request would be unreasonably burdensome.
For that reason, the judge has decided to defer judgement on the matter and has ordered Apple to deliver a written statement by October 15. The government may issue a written response. Both Apple and the government may make oral arguments on October 22 if they wish. Although the case is not completely settled, the judge's opinion does seem to be leaning heavily in the direction that the All Writs Act cannot be used to compel the Apple to unlock phones. If the final ruling does ultimately turn out that way, it would contradict previous rulings by federal courts that Apple can be compelled to unlock phones under the All Writs Act. As in many other cases when the courts try to deal with new legal issues, there will be a patchwork of different precedents that apply in different areas, until and unless the Supreme Court weighs in on the matter.
Should Apple be compelled to unlock phones to assist the execution of a search warrant? Leave your comments below.