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Apple case: judge rejects FBI request


Apple case: judge rejects FBI request for access to drug dealer’s iPhone
Judge James Orenstein says government’s position has implications that are ‘so far reaching as to produce impermissibly absurd results’

A judge has denied an FBI request for access to a drug dealer’s phone. apple
A judge has denied an FBI request for access to a drug dealer’s phone. Photograph: Dado Ruvic/Reuters
Spencer Ackerman, Sam Thielman and Danny Yadron
Monday 29 February 2016 18.30 EST Last modified on Tuesday 1 March 2016 10.33 EST

A federal judge on Monday rejected an FBI request to order Apple to open the iPhone of a drug dealer in a major setback to the US government’s increasingly heated efforts to force the company to help unlock an iPhone used by a San Bernardino terrorist.

The ruling late on Monday by magistrate judge James Orenstein rejected the US Justice Department’s attempt to gain access to the iPhone of accused crystal meth dealer Jun Feng, whose case is ongoing, though Feng has pleaded guilty. He will be sentenced in April.

The ruling comes just hours before Apple and justice department officials are set to clash in Congress over a court ruling calling on Apple to weaken the password protection of an iPhone belonging to San Bernardino killer Syed Farook.
Apple has called the move “unconstitutional” while the Justice Department has dismissed the company’s concerns as a marketing stunt and argued it endangers lives by leaving law enforcement blind.

“It is still our hope that they will see their way clear to complying with that order as thousands of other companies do every day,” attorney general Loretta Lynch told Fox News on Monday.

In the Feng case, the DoJ had asked that Apple be compelled to aid the investigation using the All Writs Act, a 227-year old law also used in the FBI’s San Bernardino investigation.

Orenstein’s decision not to honor the DoJ’s motion comes as both Apple’s general counsel Bruce Sewell and FBI director James Comey prepare to testify before Congress over an effort likely to define the boundaries between cybersecurity and national security for the next several years.

The New York magistrate echoed at least one of the key arguments Apple is making in its other, higher-profile fight with the government: the All Writs Act (AWA) can’t be used to order a technology company to manipulate its products, he said. “The implications of the government’s position are so far-reaching – both in terms of what it would allow today and what it implies about Congressional intent in 1789 – as to produce impermissibly absurd results,” said the judge.

Orenstein said that had the court accepted the government’s position, the result would be “so expansive – and in particular, in such tension with the doctrine of separation of powers – as to cast doubt on the AWA’s constitutionality if adopted.”

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The government said it would appeal Orenstein’s ruling. “We are disappointed in the Magistrate’s ruling and plan to ask the District Judge to review the matter in the coming days,” said a DoJ spokesperson.

“As our prior court filings make clear, Apple expressly agreed to assist the government in accessing the data on this iPhone – as it had many times before in similar circumstances – and only changed course when the government’s application for assistance was made public by the court. This phone may contain evidence that will assist us in an active criminal investigation and we will continue to use the judicial system in our attempt to obtain it.”

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