A New York federal judge has indicated that he is likely to refuse a government request to compel Apple to unlock a customer’s iPhone, but will first ask Apple to explain why decrypting iPhones would be “unduly burdensome.” The iPhone concerned is apparently not running iOS 8 or 9, and so Apple would have the technical ability to decrypt it.

The Washington Post reports that Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York is an activist judge who is believed to be attempting to open up public debate on the issue of privacy versus law enforcement …

“He’s clearly a judge who is interested in opening topics to discussion in the judiciary, but he also thinks the larger public should know about the debate,” said Brian Owsley, a former magistrate judge in Texas who issued rulings that heightened privacy protections for the government’s use of cellphone-tracking devices.

Other colleagues and analysts have made similar comments, reports the paper.

Apple came under strong fire from law enforcement agencies after it boosted iPhone security in iOS 8 so that Apple has no access to the encryption key needed to access customer data.

If the government laid a subpoena on us to get your iMessages, we can’t provide it. It’s encrypted and we don’t have the key.

FBI Director James Comey said that this was a step too far.

The notion that we would market devices that would allow someone to place themselves beyond the law, troubles me a lot. As a country, I don’t know why we would want to put people beyond the law.2

U.S. Attorney General said that there needed to be a balance between privacy and law enforcement needs.

It is fully possible to permit law enforcement to do its job while still adequately protecting personal privacy.

Arguments have grown increasingly dramatic, the DOJ argued that iPhone encryption could eventually lead to the death of a child” and Manhattan district attorney Cyrus Vance, Jr, suggesting that the iPhone would be “the terrorists’ communication device of choice.”

The opposing argument is, of course, that if Apple builds in a backdoor for use by law enforcement, it is only a matter of time before it is discovered and used by hackers – an argument the Obama administration appears to have accepted, reports the NY Times.

The Obama administration has backed down in its bitter dispute with Silicon Valley over the encryption of data on iPhones and other digital devices, concluding that it is not possible to give American law enforcement and intelligence agencies access to that information without also creating an opening that China, Russia, cybercriminals and terrorists could exploit.

FBI Director Comey told Congress on Thursday that the administration would not be seeking a change in the law yet, but would continue to try to persuade companies to cooperate voluntarily.

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