Asking Apple to bypass an iPhone’s password protection to hand over personal information to the US government is the equivalent of “asking a drug company to administer a lethal injection”, a judge has said.

The Obama administration requested that Apple bypass passwords in a case involving an iPhone 5S and a closed investigation that is being conducted by the FBI and the US Drug Enforcement Administration but has unfolded into a war between a judge and the Obama’s Justice Department over encryption.

After hearing Apple’s latest request, the judge, James Orenstein of New York’s eastern district court, said on Monday “that forcing Apple to comply would be comparable to asking a drug company to administer a lethal injection to a patient despite its conscientious objection, simply because it had the tools in order to do so”.



Apple declined to comply with the administration’s warrant, insisting that doing so would “threaten the trust between Apple and its customers and substantially tarnish the brand”. The US Justice Department, however, claims Apple has been unlocking phones in compliance with search warrants “for years without any objection” and should be forced to do so in the latest sensitive investigation.

Saritha Komatireddy, an Obama administration lawyer in the case, responded by calling the comparison “somewhat inflammatory”.

The Justice Department had argued that Apple merely licenses the software to users, but retains ownership of it, meaning it could take back control of the software in order to comply with the warrant.



“Apple cannot reap the legal benefits of licensing its software in this manner and then later disclaim any ownership or obligation to assist law enforcement when that same software plays a critical role in thwarting execution of a search warrant,” reads the government’s argument.

But Apple argues that the licensing requirements of the software don’t entitle the company to invade a customers privacy to access data stored on the device, and that the restrictions are instead meant to prevent customers from redistributing the operating system on its own.

For instance, you can’t set up a store to sell people a copy of the iOS operating system. Apple insists the restrictions do not prevent a customer from reselling the entire device, software included, to a third party without Apple’s knowledge.

Apple’s example of what the government was asking it to do was a bit less harsh than Orenstein’s in the case: “To hold that the existence of such a license is enough to conscript Apple into government service would be to say that the manufacturer of a car that has licensed software in it (which is increasingly the case) could be required to provide law enforcement with access to the vehicle or to alter its functionality at the government’s request.”

The phone in question is running iOS 7, an older version of Apple’s mobile operating system, which it technically has the ability to access. Later versions of the operating system, iOS 8 and iOS 9, include stronger encryption, which the company argued in a brief last week make it “impossible” for anyone, including Apple, to access a phone’s data without having the passcode.

The Obama administration supports strong encryption, but has pushed to bypass that encryption with a warrant when the data is potentially involved in a terrorism or criminal case. Security experts are concerned that if Apple held a decryption key for such cases, it would in turn be making the operating system more vulnerable to attacks.

Judge Orenstein has requested Apple explain in more detail why it has changed its stance on the matter as well as for the Justice Department to provide additional arguments on why it feels Apple should comply.

Both parties’ statements are due to the court on Wednesday, and the judge is expected to make a ruling shortly after.

“Just because they’ve never objected before, there’s nothing that precludes them from raising that argument now,” Andrew Crocker, staff attorney for the Electronic Frontier Foundation (EFF) told the Guardian.

“I think the biggest thing that’s changed is that a judge questioned if this was a good use of the law, and whether Apple should be compelled to have to do this. Apple’s brief, the way they explained it, is that they’ve never been a party to one of these cases. Even though they’ve complied before, they’ve never been directly involved where a judge said ‘Wait a minute. Maybe this isn’t the right use of the general-purpose All Writs Act to force them to unlock the phone.’ [Apple’s] argument is that it’s going to far to always compel a third party that has neither possession or control of this information to unlock the phone. I think that’s a really legitimate argument.”

Apple did not respond to a request for comment, but the company’s website states that only 6% of information requests relate to information on a device which 94% relate to stolen devices.

“Responding to an Account Request most often involves providing information about a customer’s iCloud account. If we are legally compelled to divulge any information for an Account Request, we provide notice to the customer when allowed and deliver the narrowest set of information possible in response,” the site says. Apple claims it disclosed users’ content in response to 27% of all requests from 1 July 2014 to 30 June 2015.