Can the FBI force a company like Apple to extract data from a customer’s smartphone In the fight over an iPhone used by an extremist killer in San Bernardino, some legal experts say Congress has never explicitly granted that power. And now a federal judge agrees in a similar case.
In a New York drug case that echoes the much higher-profile San Bernardino dispute, US magistrate James Orenstein has ruled the government doesn’t have authority to make Apple pull information off a suspect’s iPhone. The judge said in his ruling that Congress has already considered, but rejected, extending the government’s authority in this fashion.
Orenstein cited the history of a 20-year-old federal law — one that requires phone companies to assist police in conducting court-authorised wiretaps. Congress has resisted attempts over the years to extend that authority to tech companies like Apple, according to experts who have studied the law, known as the Commu-nications Assistance for Law Enforcement Act, or CALEA.
Federal prosecutors have argued that a much older law known as the All Writs Act allows courts to compel private parties to assist law enforcement. But Orenstein said that shouldn’t apply when, in his words, “Congress has considered legislation that would achieve the same result but has not adopted it.”
The New York ruling isn’t binding on the magistrate in the San Bernardino case. And federal authorities said on Monday they’ll appeal Orenstein’s decision. But a senior Apple executive, who spoke on condition that he wouldn’t be named, said Apple believes Orenstein’s ruling is both persuasive and relevant to the issues at stake in San Bernardino.
In that case, the FBI wants Apple to create software that would bypass some iPhone security features, making it easier to guess the passcode that would unlock it. Prosecutors say they’re only seeking what amounts to routine cooperation; Apple and its supporters say the request is unprecedented and would make other iPhones vulnerable to hacking by authorities and criminals alike.
By contrast, US phone carriers have long been required to design and build their networks in ways that allow federal wiretaps of digital phone calls. That government authority stems from CALEA, a 1994 law that drew heated debate before it passed, and even more controversy on occasions when federal officials sought to expand its scope. Tech industry and civil liberties groups have mostly succeeded in blocking those efforts.
