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Federal judge asks Apple to explain why decrypting iPhones would be “unduly burdensome” as tactic to open debate


A New York federal judge has indicated that he is likely to refuse a government request to compel Apple to unlock a customer’s iPhone, but will first ask Apple to explain why decrypting iPhones would be “unduly burdensome.” The iPhone concerned is apparently not running iOS 8 or 9, and so Apple would have the technical ability to decrypt it.

The Washington Post reports that Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York is an activist judge who is believed to be attempting to open up public debate on the issue of privacy versus law enforcement … 

“He’s clearly a judge who is interested in opening topics to discussion in the judiciary, but he also thinks the larger public should know about the debate,” said Brian Owsley, a former magistrate judge in Texas who issued rulings that heightened privacy protections for the government’s use of cellphone-tracking devices.

Other colleagues and analysts have made similar comments, reports the paper.

Apple came under strong fire from law enforcement agencies after it boosted iPhone security in iOS 8 so that Apple has no access to the encryption key needed to access customer data.

If the government laid a subpoena on us to get your iMessages, we can’t provide it. It’s encrypted and we don’t have the key.

FBI Director James Comey said that this was a step too far.

The notion that we would market devices that would allow someone to place themselves beyond the law, troubles me a lot. As a country, I don’t know why we would want to put people beyond the law.2

U.S. Attorney General said that there needed to be a balance between privacy and law enforcement needs.

It is fully possible to permit law enforcement to do its job while still adequately protecting personal privacy.

Arguments have grown increasingly dramatic, the DOJ argued that iPhone encryption could eventually lead to the death of a child” and Manhattan district attorney Cyrus Vance, Jr, suggesting that the iPhone would be “the terrorists’ communication device of choice.”

The opposing argument is, of course, that if Apple builds in a backdoor for use by law enforcement, it is only a matter of time before it is discovered and used by hackers – an argument the Obama administration appears to have accepted, reports the NY Times.

The Obama administration has backed down in its bitter dispute with Silicon Valley over the encryption of data on iPhones and other digital devices, concluding that it is not possible to give American law enforcement and intelligence agencies access to that information without also creating an opening that China, Russia, cybercriminals and terrorists could exploit.

FBI Director Comey told Congress on Thursday that the administration would not be seeking a change in the law yet, but would continue to try to persuade companies to cooperate voluntarily.

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  1. PhilBoogie - 7 years ago

    I wish 9.1 was officially out, so I could simply post a reply with an appropriate emoji

    • mikemansor - 7 years ago

      Since I am running a 9.1 Public Beta, let me help you🖕🏻

      • fistsoffrost123 - 7 years ago

        It comes through as boxes with questions marks on my end. Damn!

  2. Alex Moran - 7 years ago

    I wish the FBI would shut down WordPress for some retarded reason.

    Anyone here on 9to5mac community willing and able to create a petition against WordPress ? Perhaps we can get this website to do away with it

  3. Jimmy Baeyens - 7 years ago

    so law enforcement interrogation techniques don’t work anymore to get access?

  4. 89p13 - 7 years ago

    “continue to try to persuade companies to cooperate voluntarily.” Which I take to mean that Tim Cook’s family is in danger of being murdered in their beds – much like the whole argument of “lead to the death of a child”

    FUD by our government. It has no place in a Democratic society!

  5. Howie Isaacks - 7 years ago

    I think that the government should use their tax payer funded resources to do the cracking on their own. Apple did a great thing when they encrypted iOS, and they did a great thing when they released FileVault. I prefer privacy over the alleged additional safety would would gain from allowing law enforcement to have easy access to our devices. This judge must have been sick the day they taught the 4th Amendment in law school, and it’s his job to make rulings based on the law, not make it up as he goes along. Let Congress debate the laws. The courts are only meant to prove or disprove questions of the law, not change the laws.

    • PhilBoogie - 7 years ago

      Well, they did a great thing with FileVault v2, yes!

      Kidding aside, I fully agree. Tim wrote it best, but alas, I can’t find that article where he states why Apple encrypts user data, and doesn’t think there are any pros over the cons.

  6. tincan2012 - 7 years ago

    Some have raised the suggestion that sometime ‘via warrants’, searching a smartphone might be justified. I do not agree if it meant that Apple would be required to provide a back door. Opening the door ‘a bit’ so that law enforcement agencies could get access, is a very slippery slope. Perhaps we should live in glass houses so that nothing we do is completely private? Or once a year, we should send our ’email archive’ in to the authorities so that it can be reviewed for questionable content? These could avert problems no? We can all agree that this is a tough issue, but one we can’t really sit on the fence about. IMO no one who values their privacy and personal freedom from government control should support this.

  7. hydrovacing - 7 years ago

    If there was a back door then every Covert Spy agency in the world would have a back door to everyones private lives. How do we go about giving a back door without invading everyones privacy and so far no one has come up with and intelligent answers, not even FBI Director Comey who is spearheading this for all the covert spy agencies in the US.

  8. Jake Becker - 7 years ago

    I’m actually a bit proud of humanity, especially in America, for these comments I’m seeing here, keep it going.

  9. mechanic50 - 7 years ago

    He actually asked why the older iOS 7 would be burdensome to decrypt. Because it is not built like iOS 8 and 9. He has already concluded that he will not ask Apple to decrypt 8 or 9 because they can’t.

    • mechanic50 - 7 years ago

      He understands the reason behind iOS 8 and 9, but the iPhone currently in his case is running iOS 7. His question is would it be “unduly burdensome” to unlock the iPhone in his case running iOS 7 that is not fully encrypted at the disc level like 8 and 9 are.

      • mechanic50 - 7 years ago

        Or more correctly iOS 8 and 9 do not store the encryption keys on the iPhone anymore and are not available to apple. iOS 7 did.

    • 89p13 - 7 years ago

      I like the fact that the judge is looking to open a dialogue as to what you are saying. My fear is that this action opens a very slippery slope that Homeland Security / NSA and whatever other Government acronym will use as a precedent to “force” Apple at al to prohibit future versions of iOS from not having a back door built in that can be exploited to open the encryption to “The Good Guys Who Are Only Looking To Protect Us” and prevent that “. . . child from being kidnapped!”

      I Do Not Trust My Government. How sad is that.

      • srgmac - 7 years ago

        Unfortunately, because of the heroes like Chelsea Manning and Edward Snowden, we have very logical, sane, and rational reasons why we should not trust our government. They break the law time and time again; and they get away with it. Even if you want to argue that security is more important than privacy; fine — that is an argument, and we live in a society where we can debate arguments freely and openly. But certainly, we all must be governed by the same laws. And when the NSA spied on us all without the legal authority to do so, they broke the law. Regardless if you think it was morally right or wrong to do so, they still acted outside of our laws! When the director of the CIA testified before Congress and said they were not spying on us, he broke the law!! Since no one has been arrested yet, and probably never will be, it’s clear that there is not one single rule book of codes that everyone has to follow.


Avatar for Ben Lovejoy Ben Lovejoy

Ben Lovejoy is a British technology writer and EU Editor for 9to5Mac. He’s known for his op-eds and diary pieces, exploring his experience of Apple products over time, for a more rounded review. He also writes fiction, with two technothriller novels, a couple of SF shorts and a rom-com!

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