With Apple court order, activist federal judge seeks to fuel debate about data encryption

“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,” Ellen Nakashima reports for The Washington Post.

“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,” Nakashima reports. “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,” Nakashima reports. “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,” Nakashima reports. “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.”

Read more in the full article here.

MacDailyNews Take: An activist judge who supports citizens’ privacy rights would need to make such as move with an iPhone running iOS 8 or later which Apple simply cannot open even if so ordered.

Regardless of whether we agree with activist judges (isn’t that the legislative branch’s job?), the U.S. government should adhere to the U.S. Constitution.

Visit the Apple-backed reformgovernmentsurveillance.com today.

Edward Snowden explains why Apple should continue to fight the government on encryption – August 1, 2015
Obama administration war against Apple just got uglier – July 31, 2015
Edward Snowden: Apple is a privacy pioneer – June 5, 2015
U.S. Senate blocks measures to extend so-called Patriot Act; NSA’s bulk collection of phone records in jeopardy – May 23, 2015
Rand Paul commandeers U.S. Senate to protest so-called Patriot Act, government intrusion on Americans’ privacy – May 20, 2015
Apple, others urge Obama to reject any proposal for smartphone backdoors – May 19, 2015
U.S. appeals court rules NSA bulk collection of phone data illegal – May 7, 2015
In open letter to Obama, Apple, Google, others urge Patriot Act not be renewed – March 26, 2015
Apple’s iOS encryption has ‘petrified’ the U.S. administration, governments around the world – March 19, 2015
Obama criticizes China’s demands for U.S. tech firms to hand over encryption keys, install backdoors – March 3, 2015
Apple CEO Tim Cook advocates privacy, says terrorists should be ‘eliminated’ – February 27, 2015
Apple’s Tim Cook warns of ‘dire consequences’ of sacrificing privacy for security – February 13, 2015
DOJ warns Apple: iPhone encryption will lead to a child dying – November 19, 2014
Me-too Google: Uh, okay, we’ll do default encryption like Apple, too (it’ll just take several years to roll out) – September 18, 2014
Apple CEO Tim Cook ups privacy to new level, takes direct swipe at Google – September 18, 2014
A message from Tim Cook about Apple’s commitment to your privacy – September 18, 2014
Apple will no longer unlock most iPhones, iPads for police, even with search warrants – September 18, 2014


  1. People usually only complain about activist judges when they disagree with their opinions.

    In any case, they do seem to serve the purpose of forcing the discussion of issues where our do-nothing congress is too afraid to take the lead in public debate of critical public policy issues.

    1. People only complain about activist judges when they don’t understand how our legal system works (or, maybe they do understand, but are being disingenuous opportunists and are willing to play off other people’s ignorance).
      We have a system based on common law. Very few countries do that. I guess we could have a system like France, where everything has to be written out in detail in their laws.
      One of the concepts in common law is that judges are empowered to come up with equitable solutions to disputes between parties, based on notions of fairness, rights, and incentives. Another important concept in common law is that when there are gaps or ambiguities in the legislated law, judges are empowered to make decisions that are consistent with the parties’ rights and existing law. “Judge-made law” is a long-standing concept in this country, by design. If you don’t know that, then you really need to go read about it before complaining about “activist judges.”
      Also, if you actually believe in the U.S. Constitution, you should be aware that the judicial branch has the responsibility of upholding individual rights against legislative or executive encroachment. I think you have to be pretty naive to think the legislature or the executive can be trusted to respect the rights of the people. Judges often don’t do nearly enough.

  2. Asking Apple to open a locked encrypted phone, is asking them to “own” the data, which does not belong to them. This is in itself unduly burdensome.

    Apple cannot and should not be responsible for the end user’s content contained on the technology they develop.

    By adding encryption, several things occur. They remove themselves from the management tasks of end user’s data, which is the individual’s responsibility. They only provide tools to aid the end user to accomplish data redundancy. They provide a safe haven, from third parties. By providing a “back door” to that data, they are allowing third party access regardless of anyone’s will. A door is a door is a door.

    I wan’t to know. When security consultants are asked, “What is the most secure cell phone?” They almost always suggest that Apple’s iPhone is not it. They suggest that Apple has numerous zero day exploits, un-patched as of iOS 9.x. That Apple’s security is a false front.

    There is only ONE truth. Either Apple’s phones are so secure that the federal and local governments are having a fit over trying to get into them to protect children and catch drug runners, or Apple’s phone security is like cheese cloth and leak all sorts of data.

    Who’s telling the truth?

    1. Judges live in the real world not the conservitard world. Which means they know they need to do the due diligence to get a ruling that won’t just be overturned.

    2. Over 699 current exploits are listed for “iPhone OS” here:

      While only 138 are listed for Android.

      They have a very comprehensive list there. I intend to download and figure out how many are iOS 9 etc. At first glance there appear to be more iOS 9 exploits than all Android exploits.

      So all the crap we hear about how secure iOS is…. At least seems debatable. It will be worth while to look at the seriousness of the exploits and what the attack vectors are. If iOS is so insecure, why are government agencies bitching about penetrating. Because even though they can get in, they cannot read important data afterwards would seem to be the answer.

        1. No, it’s not like that list at all. If you bother to read the vulnerabilities. CVE & NVD are the two main databases out there.

          Be aware that notwithstanding the kool-aid we all drink and love here, the greater security community is constantly pointing out that iOS is not as secure as it is made to seem.

          You are welcome to download the lists and examine the vulnerabilities as I am doing, rather than jumping to baseless conclusions. The lists, for instance, go back to the beginning of time for each OS, and include vulnerabilities that are known to have been fixed.

          The Department of Homeland Security National Vulnerability Database puts the number of Apple iOS vulnerabilities at 598. But again, they are listing everything there ever was.

          DHS shows 128 iOS 9 vulnerabilities.

          AH HA! DHS shows 2035 Android Vulnerabilities. (This is of course to the beginning of time).

          Android 5.x has 237 known vulnerabilities. So clearly Google has fixed a great deal of crap, but they have a significant problem getting people to upgrade. So there may be Android users out there with hundreds of vulnerabilities.

          237 is not that much greater than 128 though, and the assumption that iOS is bullet proof while Android is complete shit is at least unfair.

          I haven’t got any more time to play in this data, but I’d be willing to bet that there are more level 10 (high) threat vulnerabilities for Android, vs. iOS. I’m also willing to bet more than a few of the vulnerabilities require physical access to the instruments.

          Many of the vulnerabilities probably require a specific application as well.

        2. And this will *REALLY* piss you off John Smith. Remember, don’t shoot the messenger.

          I just sorted the to 50 product by total number of “distinct” vulnerabilities, meaning no variations on a theme. For just 2015.

          Number 1 spot goes to Mac OS X.
          Number 2 spot goes to iPhone OS.
          Number 3 spot goes to Flash
          Number 20 spot goes to Android.
          Number 44 Spot goes to Windows 10.

          All Time Leaders:

          1. Linux Kernel
          2. Firefox
          3. Mac OS X
          4. Chrome
          5. Windows XP
          6. iPhone OS
          13. Safari
          15. FLASH

          Yeah, this is going to require more investigation.

          1. Clearly most Mac and iOS vulnerabilities have never been exploited. Why not?

            Windows XP has (supposedly) fewer vulnerabilities — but maybe a million viruses and trojans compared to single digits for Mac. Or is it 2 million? Why?
            And it’s not because Windows is more widespread. It’s not 200,000 times more widespread.

            Similarly for Androcrap. Why?

          2. Thank you although you missed to make sure what that list means, OS X is top vulnerable ?

            Flash is ?

            I guess you wanted to point out that OS X is still the most secure Desktop OS, although not really 100% safe by default after average user setup (especially Safari, Mail, 2step and keychain as well as firmware updates)

             just missed to stay on the OS X quality lane more or less just because of the cashew iPhone, this is pretty clear.

            Only Wall Street and the numbers guy are standing in the way of getting back to the Mac in terms of “the only true personal computer that does not need any virus tools or 3rd party security software.”

            A claim that is so very fucking unique, Thelonious Monk will def. understand the idea.

            Go for it , do the right thing in these times of worshipping paper that has a print on it that says “In God we trust”

            That is really funny from a non american perspective.

            But that is a Timmy made issue.

      1. 699 exploits beginning with iOS version 1 😉 That list is really interesting to read btw.

        Just read the list from the newest “exploit” and try to see that the most common phrase is “in Apple iOS before 9” … keep your devices up to date and most problems disappear magically 🙂

        How many people running Android even know about “Stagefright” and all other shit which isn’t (and probably won’t be ever) even patched?!

  3. The conservitards label any judge who does anything they don’t like as “activist” but judges who do things they do like that aren’t in line with the constitution well thats ok.
    Another political screed from this sites Limbaugh worshippers who like most conservatives have no idea what is actually in the constitution.

  4. Maybe if the legislative branch wasn’t so stuffed full of useless old dodders incapable to achieving anything other than lining their own pockets the judicial branch wouldn’t feel the need to fill the gap.

    Left to Congress nothing in US law would ever change, and the entire country would circle the bowl and flush itself away.

    Aren’t you lucky there are “activist” judges?

  5. As usual:

    The US Constitution plainly allows citizens to protect the privacy of their property.

    This is NOT an issue of businesses. It is an issue of CITIZEN’S CHOICE.

    So please to STFU Judge James Orenstein of the U.S. District Court for the Eastern District of New York and all others who find encryption to be inconvenient. WE THE PEOPLE WIN. You surveillance fanatics lose. No totalitarianism in my country!

    Thankfully, whatever these asshat Big Bozos attempt to pull on the citizenry, encryption is free, publicly available and here to stay. It’s never been a matter of law enforcement or fighting terrorists. It’s always been a matter of PROTECTING CITIZEN’S RIGHTS. We’re not giving them up.

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