The Apple logo on its store in Grand Central Terminal...

The Apple logo on its store in Grand Central Terminal on Dec. 7, 2011. Credit: AP / Mark Lennihan

A federal magistrate in Brooklyn is temporarily refusing to order Apple to disable security on a device seized by the government, citing Congress' failure to act on the hot-button issue of encryption despite urging from law enforcement officials.

"Congress has done nothing that would remotely suggest an intent to force Apple, in the circumstances of this case, to provide the assistance the government now requests," U.S. Magistrate James Orenstein said in his ruling, posted on the court's website Thursday afternoon. "Several of its members have introduced legislation to prohibit exactly what the government now asks the court to compel."

Orenstein described it as the first written opinion withholding authority, and said he wanted to hear from Apple by Thursday and then would hold an oral argument on Oct. 22 if the government and Apple requested one before making a final ruling on the request.

He provided few details on the government's Thursday application asking him to order Apple to help, saying only that the government had a warrant to seize the device but couldn't unlock it, and leaving out details that might compromise the investigation.

In the absence of clear legislation, Orenstein said, he had to consider how burdensome an order would be on Apple, and noted that forcing the company to unlock phones could affect carefully considered commercial decisions on the balance between public safety and privacy.

Orenstein said the government claimed that in "other cases" Apple was ordered to assist law enforcement and had complied, but he said he found only one published court opinion on the issue, in which an unnamed manufacturer was ordered last year to assist the government.

A spokesman for Apple, which has opposed legislation requiring a "back door" in devices to allow law enforcement access, declined to comment on the case.

Andrew Crocker, a lawyer with the Electronic Frontier Foundation, said he believed that Orenstein was the first judge to question the government's legal authority under the so-called All Writs Act to compel Apple to unlock a phone.

But he also said the issue may be moot if the device in question is of recent vintage, because Apple itself is unable to de-encrypt its new operating systems and will probably tell the court so.

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