By Andrew Keshner/Associated Press, From New York Law Journal

A Brooklyn magistrate judge has denied prosecution attempts to force Apple Inc. to assist with law enforcement efforts to unlock a smartphone in a drug case.

Eastern District Magistrate Judge James Orenstein concluded Monday that a centuries-old law invoked by the government provided no basis to compel the computer maker’s assistance.

The ruling puts Orenstein at odds with a California magistrate judge who said the All Writs Act of 1789 permitted prosecutors to obtain Apple’s “reasonable technical assistance” to unlock an iPhone used by a man who, with his wife, killed 14 people in a San Bernardino terror attack. Apple is challenging the order.

In the Brooklyn case—a narcotics matter where the defendant has already pleaded guilty—Orenstein said, “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.”

In his 50-page decision, Orenstein said he would not opine on whether “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.”

Balancing those interests is critically important, he said, “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.”

Still, he said, that debate must be waged by lawmakers.

A senior Apple executive said during a conference call Monday that Orenstein’s decision was important but not a binding precedent and would have a persuasive effect in the San Bernardino case.

A Justice Department spokesman said the agency was disappointed in the ruling and planned to appeal in the coming days.

The case is In re Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant Issued by This Court, 15-mc-1902.

IMAGE: NLJ/Diego M. Radzinschi

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Related story:

War of words escalates in Apple v. FBI

By Ross Todd, From The Recorder

Litigators are notorious for waiting until the very last minute to file briefs.

But lawyers for Apple Inc. beat a Friday deadline by more than 24 hours this past week with their first push to block a court order forcing the company to help the government access a passcode-protected iPhone used by one of the San Bernardino shooters.

The timing was calculated to ensure that the brief wouldn’t get lost in a weekend news cycle likely to be dominated by the South Carolina Democratic primary, the Oscars and, of course, Donald Trump.

Both Apple and the government are vying to win in a federal magistrate’s Riverside courtroom and to lay the groundwork for a potential appeal. But beyond the courtroom, it’s clear the company and the government are also using the legal proceeding as a pulpit to appeal to the public and policy makers. Apple executives speaking on the condition that they not be named said Thursday that the brief writers intentionally steered clear of legal jargon where possible to make the filings approachable for a nonlegal audience.

“This is not a case about one isolated iPhone,” Apple’s lawyers at Gibson, Dunn & Crutcher and ZwillGen wrote at the opening of Thursday’s filing. “Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.”

The government has also used its court filings as a megaphone in the larger encryption fight, taking the unusual step of filing a motion with the court that they noted was “not legally necessary” and using it to counter messages coming from Apple CEO Tim Cook.

UC-Hastings College of the Law professor Rory Little said the fight for hearts and minds is likely to continue.

“This is just an initial salvo in what is a really serious high-level policy discussion,” Little said. “It’s a really big question that is not going to be decided in any one case,” he said. For outside counsel in the case, Apple has hired a team that includes experts on appellate and privacy law, as well as lawyers comfortable in the spotlight. Leading Apple’s team at Gibson Dunn are former Solicitor General Theodore Olson and Theodore Boutrous Jr., signaling that the company is digging in for a prolonged fight. Both Olson and Boutrous also have experience litigating cases that involve a heavy public relations component, including the fight for marriage equality.

Little pointed out that Olson, whose wife died in the 9/11 attacks, also provides a powerful voice to counter the government’s argument that Apple is depriving it of a necessary tool to fight terrorism.

Apple has also enlisted ZwillGen’s Marc Zwillinger, a former federal prosecutor who specializes in privacy law and regularly represents the company on related matters.

UC-Davis School of Law professor Elizabeth Joh said that in cases that involve difficult technological issues, coming up with the most persuasive analogy can shape the outcome.

Confronted with the order that the company defeat an iPhone security feature, Apple’s lawyers have argued that the government is asking the company to create a “master key” to customer’s phones or, put another way, to open a “back door.” The government calls those metaphors overblown.

Joh said there are risks in oversimplifying in either direction. “Is this really like a one-time-only key to a physically locked door? Or is it like the government forcing an innocent third party to create something against its will?” Joh said. “My concern is that an analogy, once adopted, could be dangerous if it is inaccurate in describing the technology at issue.”

OVERREACH OR OVERREACTION

Earlier this month, U.S. Magistrate Judge Sheri Pym of the Central District of California signed off on a government request to compel Apple to help access data stored on the work phone of Syed Rizwan Farook, one of two people who carried out last year’s mass shooting that killed 14 people in San Bernardino. The FBI says it has been stymied by a feature of Apple’s mobile operating system that erases data after 10 consecutive unsuccessful passcode entries. Pym, who sits in Riverside, issued her ruling without prior briefing from the company’s lawyers.

IMAGE: Timothy Cook Diego M. Radzinschi/NLJ

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