NEW YORK – U.S. Magistrate Judge James Orenstein of Brooklyn does not have the power to bind other courts. The 50-page opinion he issued Monday, denying the Justice Department’s application for an order under the All Writs Act to compel Apple to help the government unlock the phone of a convicted drug dealer, will not end the California federal court showdown between Apple and the Justice Department over an iPhone belonging to San Bernardino shooter Syed Farook. Orenstein’s decision isn’t even the last word in the Brooklyn case — the Justice Department on Monday said that it will ask for the order to be overturned by a district court judge.
But Orenstein’s opinion is a milestone in the ongoing debate over privacy and national security. He is the first federal judge to analyze the reach of the All Writs Act in the age of the smartphone, yet he roots his discussion not in technological terms but in fundamental U.S. constitutional principles.
Orenstein’s conclusions do not rely on the specific facts of the case before him or on the particulars of the operating system at issue. They are based on his reading of constitutional and congressional history, providing broad context for his assertion of government overreaching. Judges considering contested All Writs Act requests in other courts may differ with Orenstein but they ought not ignore him.
That was exactly Apple’s strategy, of course, when the company filed a letter to Orenstein on Feb. 12 — the same day that a federal magistrate in Riverside, California, ordered Apply to help prosecutors break into Farook’s phone — after months of inaction on the government’s All Writs Act application. As I’ve previously reported, the Justice Department had brought an ex parte motion to force Apple to help investigators break into a phone belonging to Jun Feng, a suspected drug dealer.
Though federal judges routinely grant such orders when prosecutors assert they are necessary to execute authorized search warrants, Orenstein said he had doubts and wanted to hear from Apple before he ruled on the government’s application. The company had previously complied with dozens of court orders directing it to help the government access data from encrypted phones. But Orenstein’s doubts about the All Writs Act emboldened Apple to make a stand, even after Feng pleaded guilty.
The Feb. 12 letter from Apple to Orenstein signaled to the Brooklyn judge that he had the opportunity to shape discussion of the reach of the All Writs Act. In Monday’s opinion, Orenstein seized that opportunity — and gave Apple just about everything it could have hoped for. He found that the All Writs Act does not empower the executive and judicial branches to sidestep Congress. Orenstein looked back to the history of the First Congress, which made the catch-all statute part of the Judiciary Act of 1789.
Many framers of the U.S. Constitution were part of that first session of Congress, Orenstein said. Surely they did not mean for a provision of the Judiciary Act to undermine the Constitution’s separation-of-powers framework by effectively giving courts the power to issue orders as long as they are not expressly forbidden by Congress.
Yet that was how the Justice Department wanted him to read the All Writs Act, Orenstein said. He refused to do so: “Its preferred reading of the law would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress’s superior ability to prohibit or preempt,” the judge wrote.
“I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction.”
Orenstein said it is telling that Congress has considered whether to require information service providers like Apple to assist criminal investigations but has not enacted legislation. So if he were to order Apple to help prosecutors, he said, he would not simply be filling a gap in the court’s authority to determine the law.
Such an order, Orenstein said, would not accord with the All Writs Act requirement that court directives be “agreeable to the usage and principles of law.”
That is especially true, according to Orenstein, because the Justice Department is using the act to compel Apple’s cooperation in dozens of cases, including the Farook dispute in California.
“In (the government’s) most recent use of the statute it goes so far as to contend that a court — without any legislative authority other than the AWA — can require Apple to create a brand new product that impairs the utility of the products it is in the business of selling,” Orenstein wrote. “It is thus clear that the government is relying on the AWA as a source of authority that is legislative in every meaningful way: something that can be cited as a basis for getting the relief it seeks in case after case without any need for adjudication of the particular circumstances of an individual case.”
The Justice Department has argued that Apple is not acting out of principle but has decided to oppose the government on privacy as a public relations ploy to protect its brand. Orenstein’s opinion directly confronted that assertion, concluding that Apple seems to be mounting a good-faith defense of its basic right to run its business the way it sees fit. “Not only has Apple done nothing wrong in marketing devices with such strong data security features, it has exercised a freedom that Congress explicitly deemed appropriate in balancing the needs of law enforcement against the interests of private industry,” the judge wrote. “The fact that the government or a judge might disapprove Apple’s preference to safeguard data security and customer privacy over the stated needs of a law enforcement agency is of no moment: In the absence of any other legal constraint, that choice is Apple’s to make.”
In the end, Orenstein agreed with Apple that Congress should decide how much cooperation companies like Apple must provide. He criticized the government for making “the considered decision that it is better off securing such crypto-legislative authority from the courts rather than taking the chance that open legislative debate might produce a result less to its liking.”
If courts continue to grant orders to the Justice Department in these cases, he said, the result will be “a virtually limitless expansion of the government’s legal authority to surreptitiously intrude on personal privacy.”
Orenstein is doing his best to make sure that doesn’t happen.
Alison Frankel is a Reuters columnist.
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