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Apple took the first round in its pro-privacy battle against the U.S. government when a federal magistrate judge in Brooklyn ruled on Monday that the government can't force Apple to help break an iPhone's passcode security.

Before the government had the San Bernardino case to work with, it was trying the same game plan in New York. In this instance, the FBI sought to compel Apple to provide custom software to help it access data on an iPhone in a drug case.

Similar to its position in the San Bernardino shooting case, the government attempted to use the All Writs Act to compel Apple to help it access data on an accused meth dealer’s phone. Law enforcement found an iPhone 5S during a search of the defendant’s house. The defendant claimed to have forgotten his passcode, so the U.S. Drug Enforcement Administration enlisted the FBI to help it crack the phone’s security to access its data. When the FBI could not crack the phone, the government sought to compel Apple to assist them.

Judge James Orenstein denied the government’s request.

In denying the government’s request, surely understanding that the San Bernardino case is yet to come, Judge Orenstein wrote:

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.

Those competing values extend beyond the individual's interest in vindicating reasonable expectations of privacy – which is not directly implicated where, as here; it must give way to the mandate of a lawful warrant. They include the commercial interest in conducting a lawful business as its owners deem most productive, free of potentially harmful government intrusion; and the far more fundamental and universal interest – important to individuals as a matter of safety, to businesses as a matter of competitive fairness, and to society as a whole as a matter of national security – in shielding sensitive electronically stored data from the myriad harms, great and small, that unauthorized access and misuse can cause. How best to balance those interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But 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.

Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come. For the reasons set forth above, I conclude that it does not.

Questions still unanswered

It will be interesting to see how federal judges across the country resolve these cases. Will there be a split in the Circuits? Will the government’s position be uniformly rejected? How will the parties tailor their arguments in each case as different judges write opinions on this? We will soon find out.

To be continued...

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