US Judge Expresses Doubts Over Forcing Apple to Unlock iPhone

"What you're asking them to do is do work for you," US Magistrate Judge James Orenstein told government attorneys at a hearing in Brooklyn federal court.

Orenstein asked Apple and the US Justice Department for arguments on the issue after the government sought an order compelling the company to unlock the phone. The government has obtained such orders before, and Apple has complied without objection.

Nonetheless, in response to Orenstein's request, Apple said such an order would be burdensome, in part because it would erode the trust of its customers. The company has also explained that it lacked the technical ability to unlock phones running its newer operating systems, iOS8 and iOS9, though the phone at issue in the case runs an older system.

Saritha Komatireddy, arguing for the government, said the order it sought would essentially be the same as ordering Apple to turn over information.

But Orenstein said the request went further than that. He instead compared the order the government sought to one compelling a drug company to make a lethal injection drug over its conscientious objection, asking Komatireddy whether he would have the authority to do that.

Komatireddy asked to respond in writing, adding that "the hypothetical is somewhat inflammatory."

"Purposefully so," Orenstein responded.

Komatireddy also questioned whether unlocking the phone would really be a burden for Apple, noting the company "has been doing this for years without any objection."

Orenstein later pressed Apple's lawyer, Marc Zwillinger, to explain the company's change of heart.

Zwillinger said the company had become more concerned about customer data in light of recent high-profile data breaches.

"Right now Apple is aware that customer data is under siege from a variety of different directions," he said.

Orenstein asked both sides to submit additional letters to the court addressing his questions by Wednesday, and said he would rule as soon as he could.

Komatireddy said at the hearing that the Drug Enforcement Administration and Federal Bureau of Investigation are taking part in the underlying investigation, which is not public.

The case is In re Order requiring Apple, Inc to assist in the execution of a search warrant issued by the court, US District Court, Eastern District of New York, No. 15-mc-01902.

© Thomson Reuters 2015