Tim Cook, Apple
Photo by Robert Galbraith/Reuters

In an unprecedented move, a New York Magistrate Judge ruled Monday that the United States Department of Justice cannot force Apple Inc. to extract data from a locked iPhone, as ordered by the Federal Bureau of Investigation, in a criminal drug case.

While the ruling is not binding in any other court, and the case deals with the iPhone 5 belonging to Jun Feng, who pleaded guilty to drug charges in October, the FBI is using the same defense that it is using to order Apple to “build a backdoor” into the iPhone of a San Bernardino shooting suspect.

[RELATED: Apple Policy Says They Won’t Unlock Devices for Government Requests]

The All Writs Act of 1789 states that “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law” and that an alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.”

In a ruling issued Monday, Brooklyn Magistrate Judge James Orenstein became the first federal judge to rule that the All Writs Act does not justify “imposing on Apple the obligation to assist the government’s investigation against its will.”

[RELATED: Apple Rejects Government Order to Create ‘Backdoor’ for iPhone]  

“The implications of the government’s position are so far-reaching — both in terms of what it would allow today and what it implies about congressional intent in 1789 — as to produce impermissibly absurd results,” Orenstein wrote.

The Application before this court is by no means singular: the government has to date successfully invoked the AWA to secure Apple’s compelled assistance in bypassing the passcode security of Apple devices at least 70 times in the past; it has pending litigation in a dozen more cases in which Apple has not yet been forced to provide such assistance; and in its most recent use of the statute it goes so far as to contend that a court — without any legislative authority other than the AWA — can require Apple to create a brand new product that impairs the utility of the products it is in the business of selling.

[RELATED: FBI Ordered Password Reset on San Bernardino Shooting Suspect’s iPhone]

Claiming that it is “clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts,” Orenstein noted that former proceedings which were “shielded from public scrutiny,” have shown that the government has chosen to forego “taking the chance that open legislative debate might produce a result less to its liking.” 

It is thus clear that the government is relying on the AWA as a source of authority that is legislative in every meaningful way: something that can be cited as a basis for getting the relief it seeks in case after case without any need for adjudication of the particular circumstances of an individual case (as the arguments that the government relies on here to justify entering an AWA order against Apple would apply with equal force to any instance in which it cannot bypass the passcode security of an Apple device it has a warrant to search).

This case is just one of the 12 government orders Apple is contesting. The Intercept noted that while some cases such as the case of Jun Feng, would require Apple to “use its existing capabilities to extract data like contacts, photos and calls from locked iPhones running on operating systems iOS7 and older,” other cases such as the one in the San Bernardino shooting would require Apple to “design new software to let the government circumvent the device’s security protocols and unlock the phone.”

[RELATED: Reality Check: Why McAfee Says FBI Really Wants To End Encryption, Not Hack Just One iPhone]

During a recent Reality Check segment, Ben Swann interviewed John McAfee, a cybersecurity expert and the creator of McAfee security software, who questioned whether the FBI was honest when it claimed it wanted an encryption key to hack a single iPhone.

Reality Check: McAfee Claims FBI Wants To End All Encryption,…

Reality Check: McAfee Claims FBI Wants To End All Encryption, Not Just Hack One iPhone

Posted by Ben Swann on Tuesday, February 23, 2016

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