In the midst of the firestorm surrounding Apple’s refusal to unlock the iPhone of San Bernardino shooter, Syed Rizwan Farook, federal Magistrate Judge James Orenstein has denied the government’s request to do the same for an accused drug trafficker in New York.
In both cases, the government has attempted to bypass privacy laws by turning to the All Writs Act of 1789 to force Apple to unlock the devices, but Judge Orenstein ruled that smartphones were obviously not a consideration when the law was enacted 227 years ago.
“In deciding this motion, I offer no opinion as to whether, in the circumstances of this case or others, 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,” Orenstein wrote. “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. 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 judge said.
Judge Orenstein’s ruling provides Apple’s case with the momentum it needs to confront the F.B.I. as it pushes for Apple to grant it access to Farook’s device. The center of Apple’s argument is that Apple product security will be compromised if it is compelled to provide the government with a key to unlock the devices of the accused. Apple argues that this will open the door for international hackers and cyber criminals.
An Apple senior executive said that Monday’s ruling makes it clear that compelling Apple to unlock devices raises constitutional concerns that should be first and foremost addressed by Congress.
On Monday afternoon, Rep. Michael McCaul, R-Texas, and Sen. Mark Warner D-Virginia introduced legislation for a 16-person commission to be made up of experts from the worlds of tech, law enforcement and civil liberties unions to address this issue. The commission’s goal is to develop recommendations for lawmakers to create legislation that will protect American’s online “privacy and digital security while also finding ways to keep criminals and terrorists from exploiting these technologies to escape justice.”
This legislation appears to be the first step in building a bridge between the privacy interests of millions of American’s and the government’s interest in preventing criminals from abusing the system.
A copy of Judge Orenstein’s order can be viewed here: Orenstein-Order