A federal judge in New York is seeking to expand to the courts the hot debate over whether tech companies should be forced to find ways to unlock encrypted smartphones and other devices for law enforcement.
Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York released an order Friday that suggests he would not issue a government-sought order to compel the tech giant Apple to unlock a customer’s smartphone.
But before he can rule, the judge said, he wants Apple to explain whether the government’s request would be “unduly burdensome.”
Orenstein, one of a handful of magistrates across the country who are activists in the surveillance debate, is trying to stoke a similar discussion on encryption, colleagues and analysts say.
“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.
But Orenstein may have chosen the wrong case with which to start a debate. Law enforcement officials said Saturday that the device at issue is a phone that runs on an older version of Apple’s operating system that Apple can unlock.
The national debate began last year when Apple started offering encryption on its newest smartphones that could be unlocked only by the device’s owner. That led FBI Director James B. Comey to say that such firms were deliberately allowing “people to place themselves beyond the law.”
On Thursday, Comey testified to Congress that discussions with companies over the past several months have been “productive.” In fact, Comey told Congress that the administration had decided not to seek a legislative mandate for now. Rather, it would continue trying to persuade companies to voluntarily give law enforcement access to decrypted data.
The Obama administration supports strong encryption, Comey said. But it wants to ensure that, when it has a warrant, it has access to data for criminal and terrorism cases. Privacy advocates and tech experts, though, are concerned that the administration’s version of strong encryption could include a system in which a company holds a decryption key or can retrieve decrypted communication from its servers for law enforcement. Such systems, advocates say, make platforms more vulnerable to breaches.
In his analysis, Orenstein rejected the government’s argument, which relies in part on a 1977 Supreme Court case involving the New York Telephone Company. That case applied a law dating to the Colonial era, the All Writs Act.
That case was different, Orenstein said, in part because unlike the phone company, which is a “highly-regulated public utility,” Apple is a private-sector firm that is “free to choose to promote its customers’ interest in privacy over the competing interest of law enforcement.”
Orenstein took issue with another judge who last October approved a similar surveillance application based on the 1977 case. In that case, Magistrate Judge Gabriel Gorenstein of the Southern District of New York issued an order compelling the cellphone-maker to unlock a phone for evidence of credit-card fraud.
Orenstein and Gorenstein have been on opposite sides of the surveillance debate before, notably on the need to obtain a warrant for cellphone-location data.
A key issue in the encryption debate, part of a larger discussion of what the FBI calls its “going dark” problem, is to what extent the government can force companies to provide “technical assistance” under current law.
In the Apple case, the government asserted its request “is not likely to place any unreasonable burden on Apple.”
Orenstein said, “I am less certain.”
He was part of a group of lower-level judges who a decade ago began what has been called a “magistrates’ revolt,” a movement that has generally required a warrant for cellphone-location data. Their moves increased judicial and public scrutiny of the issue.
Orenstein directed Apple to submit its views no later than Thursday. He also invited the government and the company, if either party wished, to present oral arguments on the matter on Oct. 22.
Spencer S. Hsu contributed to this report.