By now you will have heard that Federal Magistrate Judge James Orenstein of the Eastern District of New York has ruled in case parallel to the San Bernardino case involving the FBI and Apple. At issue in the San Bernardino case is whether the All Writs Act can be used to force Apple, against its will, to break into the iPhone 5C used by one of the shooters.
The New York case heard by Judge Orenstein is similar. In that case the government was seeking to force Apple—again under the All Writs Act—to assist them in breaking into an iPhone. This time the phone in question was an iPhone 5S running iOS 7. Because the OS was iOS 7, breaking into the phone was less burdensome then it would have been had it been running iOS 8. Nevertheless, Judge Orenstein refused to order Apple to assist the FBI.
What struck me was how closely Judge Orenstein’s decision tracked Apple’s response to the San Bernardino order that I wrote about last Sunday. Both argue that the All Writs Act does not apply in these cases because Congress considered the action the FBI is urging and rejected it and because it will, in fact, represent a significant burden on Apple.
Sarah Jeong over at Motherboard has an excellent summary of Judge Orenstein’s decsion and what it means for the San Bernardino case. You should definitely read Jeong’s piece but I urge you to also read Orenstein’s decision itself.
Note to journalists: If you’re feeling inclined to comment or report on the FBI vs. Apple controversy and you haven’t read Apple’s response to Judge Pym’s order and Judge Orenstein’s decision then remain silent because you’re not qualified to speak on the matter. You don’t have to understand the mathematics behind the crypto or even the technical details of what Apple is being asked to do but you do need to understand what the government is asking, why they’re asking for it—no, it’s not to recover data from the phone—and why complying would be a significant burden on Apple. You can discover all these things by reading Apple’s response and Judge Orenstein’s decision. Until you do, refrain from commenting on the case. I’m not a lawyer and I had no difficulty reading and understanding them; I’m sure you won’t either.