Apple files formal objection in San Bernardino case, submits New York decision as backup

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Apple this week made a pair of moves designed to shore up its legal footing in the ongoing battle with the FBI, formally objecting to the Central District of California's order to unlock the San Bernardino iPhone and bringing that court's attention to the pro-Apple decision handed down in New York on Monday.

In the first filing, attorneys for the iPhone maker indicated that the formal objection was being lodged "in an abundance of caution." The two-page document — which follows a more substantive motion to vacate submitted last week — was signed by lead attorney Ted Boutrous.

Apple subsequently filed a "notice of supplemental authority," amending that earlier motion to include a ruling by New York Magistrate Judge James Orenstein that the All Writs Act cannot be applied in the manner the FBI wishes.

"In In re Order, Judge Orenstein considered the government's application under the All Writs Act ("AWA") for an order compelling Apple to unlock the passcode on an iPhone running an older version of iOS, a request far less burdensome than the order sought here," the notice reads. "Judge Orenstein denied the government's request."

Apple specifically cited Judge Orenstein's assertions that such an interpretation would "upend[] the separation of powers," imply an "implausible intention [by Congress] to confer essentially unlimited legislative powers on the judiciary," and impose no "principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values to provide assistance to the government the court deems necessary."

The California case is likely to take years to wind its way through the court system, presuming that the U.S. Congress does not create a legislative remedy in the interim. Members of the House Judiciary Committee indicated during a Tuesday hearing — in which Apple general counsel Bruce Sewell gave testimony — that they would almost surely wait for the justice system's resolution before proceeding with any such legislation.