With court or­der, mag­is­trate fu­els de­bate on data en­cryp­tion

Phone at is­sue can be un­locked, of­fi­cials say, blunt­ing judge’s point

The Washington Post Sunday - - POLITICS & THE NATION - BY ELLEN NAKASHIMA ellen.nakashima@wash­post.com Spencer S. Hsu con­trib­uted to this re­port.

A fed­eral judge in New York is seek­ing to ex­pand to the courts the hot de­bate over­whether 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 de­crypt a cus­tomer’s de­vice.

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 forn ow. 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, whenit 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 on­the 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 low­er­level 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.

Cus­tomers’ pri­vacy and law en­force­ment are at odds over de­crypt­ing smart­phones.

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