In February, while a federal court in California was pondering whether or not to compel Apple’s assistance in unlocking a terrorist’s iPhone, a federal magistrate judge in New York ruled — in a drug-related case — that the government couldn’t force Apple to defeat its own encryption. In spite of that ruling, the Justice Department now tells the court that it is going ahead with its effort to require Apple’s help.

In the New York case, federal prosecutors originally asked a magistrate judge to order Apple to help bypass the encryption on an iPhone 5S seized as part of a drug investigation.

As in the California case — and dozens of others filed in recent years — the government sought a court order under the All Writs Act, a 227-year-old law that allows a judge to compel a person or group to assist in the enforcement of a court order — but only if that assistance is both necessary and “agreeable to the usages and principles of law.”

In a 50-page ruling [PDF] on Feb. 29, the court denied the government’s request. While there is a need to balance the interests of government, commerce, and citizen, the judge ruled that it was up to legislators to have that debate.

“It would betray our constitutional heritage and our people’s claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789,” wrote the judge. “Ultimately, the question to be answered in this matter, and in others like it across the country,
is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come… I conclude that it does not.”

In spite of this ruling, the government has notified federal court Judge Margo Brodie that it intends to soldier on in an effort to get Apple to unlock the iPhone in this case.

“The government’s application is not moot,” reads the letter [PDF] filed today in court, “and the government continues to require Apple’s assistance in accessing the data that it is authorized to search by warrant.”

The California dispute seemed destined to be appealed all the way to the Supreme Court until the FBI figured out a way to unlock that device. However, the phone in that case is an iPhone 5C — a different model than the one in the New York case. That would seem to indicate that FBI’s workaround in the terrorism case does not apply in this instance.

This all comes amid the announcement of a bipartisan bill [PDF] in the Senate — the “Compliance with Court Orders Act of 2016” — which states that “all persons receiving an authorized judicial order for information or data must provide, in a timely manner, responsive, intelligible information or data, or appropriate technical assistance to obtain such information or data.”

If passed, that legislation would make it clear that companies must comply with court orders to weaken data or leave backdoors in their encryption so that data can be decrypted upon receipt of a court order.

It’s likely that such a bill would face a First Amendment challenge. One of the most salient arguments against applying the All Writs Act to iPhone encryption came from a group of tech experts and privacy advocates, who argued “Apple’s code and digital signature… affirm a commitment and belief regarding the authenticity of the code and the value of their customer’s privacy and security, and that such an order would mean compelling these engineers to “undermine the very security they designed.”

“In other contexts, compelled speech and affirmations of belief that substantially hinder the speaker’s ability to communicate its desired message are clearly unconstitutional,” wrote the experts in their brief supporting Apple’s position.

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