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Apple Can’t Be Forced to Hack iPhone in Drug Probe, Judge Rules

A New York magistrate judge says that Apple cannot be forced by federal authorities to hack into an iPhone as part of an investigation of a drug dealer.

The ruling is a boost for Apple as it also resists government efforts to force the company to assist investigators seeking to bypass the encryption of an iPhone owned by one of the assailants in the December terrorist attacks in San Bernardino, Calif.

In New York, U.S. Magistrate Judge James Orenstein wrote that he could find no justification for “imposing on Apple the obligation to assist the government’s investigation against its will.”

The case involves a Drug Enforcement Agency investigation of Jun Feng, suspected of being involved in drug trafficking. After obtaining a search warrant, the DEA seized Feng’s iPhone but was unable to bypass the device’s passcode security.

In at least a dozen other instances, Apple is facing potential litigation in which authorities may seek to compel the company’s assistance in unlocking a device. In California, the company is appealing a federal judge’s order that it assist the FBI in bypassing security on an iPhone owned by Syed Rizwan Farook, one of the shooters in the San Bernardino attacks.

Federal authorities cited the All Writs Act in trying to compel Apple to assist investigators in bypassing passcode security. It has invoked the same act in asking Apple to help bypass passcode security at least 70 times in the past.

But Orenstein was skeptical that the All Writs Act, enacted in 1789, would apply in this case.

“Under a more appropriate understanding of the AWA’s function as a source of residual authority to issue orders that are ‘agreeable to the usages and principles of law,’ the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it,” he wrote in an opinion on Monday.

A Justice Department spokesman said in a statement that the DOJ was disappointed by the decision and planned to appeal.

“As our prior court filings make clear, Apple expressly agreed to assist the government in accessing the data on this iPhone — as it had many times before in similar circumstances — and only changed course when the government’s application for assistance was made public by the court,” the spokesman said.

FBI director James Comey and Apple general counsel Bruce Sewell are scheduled to testify on Tuesday at a Capitol Hill hearing on encryption.

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