Apple cannot be compelled to bypass the lock screen on an iPhone seized by the government in a New York drug case, according an order issued today by magistrate Judge James Orenstein. It’s a significant rejection of the government's interpretation of the All Writs Act, which prosecutors have advanced in multiple jurisdictions across the country—most prominently, in connection with a locked iPhone 5c that once belonged to one of the San Bernardino shooters. Today's order comes just three days before amicus briefs will be submitted in the California case, and weeks before oral arguments are set to take place.
While the government has argued that its extraordinary invocation of the All Writs Act is not intended to set a precedent, Judge Orenstein properly recognizes what is at stake. In particular, he casts shade on the very constitutionality of the government's interpretation, describing it as virtually unbounded:
The government's position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law – which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it – would transform the [All Writs Act] 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. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction. [Emphasis added.]
The government has repeatedly denied that there’s a thread running through each of these cases, and claimed that each All Writs Act order pertains to just one device. Orenstein makes quick work with that argument, connecting those cases and the ongoing (and unsuccessful) government push for new legislation to grab new search powers and crypto backdoors. Where the government cannot get legislation, it seems intent to just reinterpret the law:
It is also clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been ... shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking.
Although the New York and San Bernardino cases differ in the technical details of what the government wants Apple to do, Orenstein’s order is bound to be instructive in the California case because of its thoroughly reasoned analysis of the All Writs Act’s limits. In particular, Orenstein argues persuasively that Apple’s decisions to implement robust security features in iOS must be viewed against the backdrop of congressional inaction. Under current law, Apple’s choice to design its software this way is entirely legal; indeed some members of Congress have introduced legislation to protect the right to uncompromised encryption.
And that's not the only way in which Orenstein acknowledges the ongoing national debate. Earlier this month, in a motion to compel Apple to comply with the San Bernardino order, Department of Justice attorneys claimed the company's opposition “appears to be based on its concern for its business model and public brand marketing strategy.” Maybe so, writes Judge Orenstein, but that is hardly cause to require Apple to compromise the security of its devices.
In considering the burden the requested relief would impose on Apple, it is entirely appropriate to take into account the extent to which the compromise of privacy and data security that Apple promises its customers affects not only its financial bottom line, but also its decisions about the kind of corporation it aspires to be. 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, and I must take into account the fact that an order compelling Apple to abandon that choice would impose a cognizable burden on the corporation that is wholly distinct from any direct or indirect financial cost of compliance.
In any case, it is clear that Judge Orenstein views the government demands as a question of constitutional significance. He reserves his strongest words for the conclusion of the order, which takes the government to task for attempting to short-circuit a critically important national debate:
How best to balance those interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive. It would betray our constitutional heritage and our people's claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789.
We're pleased to see a federal judge recognize the value of that ongoing conversation, even as the government would bypass it entirely.