There has been an interesting development in the ongoing set-to between Apple and the US Authorities over whether or not the company should be required to hack their way into the phone of a terrorism suspect.
Regular readers will be aware of the story we reported on last week regarding the San Barnadino terrorist attacks in California. The main suspect in that case, Syed Rizwan Farook, owned an iPhone which is now in the possession of the FBI. However, they are unable to access it, and if they enter the wrong passcode more than ten consecutive times, all the data on the phone will be erased.
Last month, a Federal Judge in California ordered Apple to assist the FBI in unlocking the phone, something which Apple has so far steadfastly refused to do, citing the privacy of its users.
Now, in a similar case in New York, another Federal Judge has ruled on the side of Apple. The Judge in question was Magistrate Judge James Orenstein in New York’s Eastern District and his ruling does not relate to the San Bernardino case, but rather an ongoing drugs case in which the FBI also has possession of the phone but cannot unlock it.
The piece of law being used in both cases is known as the All Writs Act. It dates from 1789 but has been revived in recent years to assist the authorities with gaining access to password protected gadgets.
In his ruling, Judge Orenstein has concluded that the All Writs Act cannot be used in the case of the drugs case phone. As the Washington Post reported, his 50 page ruling was disdainful of the Governments arguments and he concluded that they were overstepping the original meaning of the Act.
He said in his ruling that their interpretation of the law was “absurd” saying that they seemed to believe it could be used to authorize them to get what they want even if every member of Congress had voted against it.
He went on to say that their argument would undermine “the more general protection against tyranny that the Founders believed required the careful separation of governmental powers.”
He also found that the request would place an unreasonable burden on Apple and concluded that none of the factors in this case “justifies imposing on Apple the obligation to assist the government’s investigation against its will.”
Needless to say, the ruling has been welcomed by privacy campaigners. Alex Abdo, of the American Civil Liberties Union, said it “sends a strong message that the government can’t circumvent the national debate by trying to manufacture new authorities through the courts.”
He went on to say that, “If the court rejects the government’s request in New York, then the FBI’s request in San Bernardino is necessarily illegal, too.”
This is where things get murky though, because although this ruling has come in an almost identical case to the San Bernardino one in California, the ruling in New York is not binding there, or indeed in any other court in the USA.
Therefore, while it is possible that it may impact on the appeal Apple are currently going through in California, it by no means certain that it will, and indeed many analysts have already been quick to point out that there is no reason other courts in other cases can’t come down on the other side of the fence.
Ultimately the problem is that there is no specific law on the US statute books which can be used in cases like this. Indeed, Judge Orenstein has himself said that the case he was ruling on in New York “falls in the murkier area in which Congress is plainly aware” but has so far “failed” to legislate on.
Whilst the debate continues to rage, and the ‘push-pull’ between privacy and security continues to move one way and then the other, it is apparent that ultimately it is still down to individual Americans to take steps to ensure their own privacy when online, or using mobile devices such as iPhones.
And most experts agree that one of the most straightforward and cost effective steps you can take is to sign up for a VPN such as ExpressVPN. They allow you to browse the web completely anonymously and offer that extra level of online privacy and security which in the current climate is not something US citizens should be taking for granted.