Today, Judge James Orenstein, Magistrate Judge of the US District Court for the Eastern District of New York, ruled that Apple is not required to provide the assistance requested by the FBI. Judge Orenstein explained that the All Writs Act (“AWA”) does not allow courts to act where Congress has considered but rejected to make legislation.

Judge Orenstein was mentioned in the previous article regarding Apple where we discussed the legal battle taking place in New York and highlighted some of its similarities and differences with the San Bernardino case. This New York ruling marks the second time that Judge Orenstein has ruled against the efforts of a government agency to use the AWA to force technology companies to provide assistance.

A copy of the recent order has been made available online. This ruling makes things much more interesting regarding the utility of the 227 year old law in modern (technology-driven) society. If the Magistrate Judge in the San Bernardino case maintains her earlier ruling, there is a possibility the contrasting outcomes will drive this dispute towards an epic battle in front of the US Supreme Court. One thing is certain, things are just getting started.

Not too long ago, many government agencies requested and received assistance from Apple Inc. (“Apple”) in decrypting information on iPhones. The demands increased rapidly, making it necessary for Apple to create a “waiting list” to handle the requests. The high number of demands required Apple to not only be a tech company which designed, developed, and sold consumer electronics, computer software, and online services, but also an arm of the government which bypassed security features put in place to protect the consumers by exploiting its flaws.

Government agencies have long set their eyes on regulating advancements in cryptology by technology companies. The motivation behind calls for regulation is to maintain an avenue where law enforcement agencies could access personal data. Tech companies also made sure their voices were heard by asking President Obama to turn down any legislation altering the companies’ security efforts that made it to his desk. Initially, the President decided that it was best not to push for such legislation. To date, Congress has not created legislation altering advancements in cryptology either.

After some time, Apple felt it had been put into uncomfortable position on too many occasions and was forced to find a way to avoid similar situations in the future. In light of major incidents of security vulnerability exposures, many entities, including government agencies, made improvements to increase tech security. Apples improvements, however, made it impossible for the company to extract data from iOS devices for themselves, or government agencies. This change prompted government agencies to get creative in their fight against tech companies and their advancements in personal data security. They turned to the All Writs Act, a federal statute originally created in 1789, three years before the adoption of the Fourth Amendment.

What is the All Writs Act?
Title 28, section 1651 of the United States Code, commonly known as the All Writs Act (“AWA”), allows the Supreme Court and all courts established by Act of Congress to issue all writs necessary or appropriate in the aiding of their respective jurisdictions and agreeable to the usages and principles of law. Continue reading →