The ruling which comes just a day before the head of the FBI and Apple's top lawyer testify before Congress.
Magistrate Judge James Orenstein rejected the Justice Department's argument that the 18th century All Writs Act can be used to force Apple to hack the iPhone in a comprehensive 50-page order. He noted that issues of 21st century privacy and technology should not be based on such an old law.
“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,” Judge Orenstein wrote.
“Apple is not doing anything to keep law enforcement agents from conducting their investigation. Apple has not conspired with [the defendant] to make the data on his device inaccessible,’’ the judge wrote. “The government’s complaint is precisely that Apple is doing nothing at all.”
Orenstein says that the Justice Department is seeking to rely on judical authority in an area where it is Congress' responsibility to pass a law if it chooses.
“It is also clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts…rather than taking the chance that open legislative debate might produce a result less to its liking,” he wrote.
As expected the Justice Department says it's “disappointed’’ in the decision and will ask a district judge to review it. “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,” said a spokeswoman.
Notably, an Apple executive says that what the government was seeking in this case was less ambitious than what prosecutors are seeking in San Bernardino, perhaps making it even harder for the Justice Department to win in that case.
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