Judge In Different Apple Case Says That All Writs Act Doesn't Mean Apple Needs To Help Feds Break Into Phone
from the paper-trail dept
Everybody has obviously been focused on the DOJ’s All Writs Act request on Apple in the case involving the San Bernardino attacker’s work iPhone, but as we’ve been covering there are a other cases where the feds have made use of the All Writs Act as well, including a key one in NY in the court of Magistrate Judge James Orenstein that we’ve been covering for a while now. Orenstein has already expressed skepticism about the government’s argument, and now has come out with a well timed order denying it.
Judge Orenstein is no fool, and knows that the world will pay close attention to his order — so it’s pretty detailed. Also, and this is important, it basically mimics the key argument that Apple has made in its filing in the San Bernardino case, saying that the All Writs Act is preempted by other laws (mainly CALEA) and therefore, Apple cannot be compelled to help. In short, Congress has addressed this more specific issue and hasn’t passed a law that allows the government to get what it wants, so the government can’t just fall back on the All Writs Act to do what Congress failed to do:
More specifically, the established rules for interpreting a statute’s text constrain me to reject the government’s interpretation that the AWA empowers a court to grant any relief not outright prohibited by law. Under a more appropriate understanding of the AWA’s function as a source of residual authority to issue orders that are “agreeable to the usages and principles of law,” 28 U.S.C. § 1651(a), the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to issue an order under the AWA: the closeness of Apple’s relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; and the necessity of imposing such a burden on Apple. As explained below, after reviewing the facts in the record and the parties’ arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government’s investigation against its will. I therefore deny the motion.
In the case — involving drug trafficking (not terrorism) charges against Jun Feng — the DEA seized Feng’s iPhone 5 (with iOS7) and wanted to use the All Writs Act to compel Apple to help open it up. The case was complicated by the fact that as this was being debated, Feng took a plea deal. However, the government still wanted to move forward to set a precedent (it claimed the information might be useful in sentencing or to find other partners and customers of Feng). Judge Orenstein “agreed” with the government that the issue is not moot, based on this, but uses it as a chance to shoot down its All Writs Act argument entirely.
In going into detail, Judge Orenstein basically repeats the basic argument that CALEA rules here, and the All Writs Act does not apply:
I believe Apple has the better argument ? both because it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also because even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe.
Judge Orenstein goes on for many pages, in great detail, explaining why CALEA applies over the AWA and why it says that Apple need not help the government here. It’s worth a read, but it follows pretty closely on Apple’s own arguments.
There are also some pretty good lines and takedowns of government arguments, and I’ll just note one here, involving how the government’s argument could be so widely abused, in particular how the DOJ says that because Apple just “licenses” the software instead of selling it, then Apple retains a relationship which makes the All Writs Act demands apply. Judge Orenstein points out how insane such a reading of the law would be:
If Apple’s retention of intellectual property rights in the software deployed in a device sold to the public sufficed to render it sufficiently close, for purposes of the AWA, to any crime committed by any user of such a device, it would eventually render the first discretionary factor under N.Y. Tel. Co. a dead letter. As constantly increasing computing power is continually squeezed into ever smaller storage devices, the category of consumer products containing licensed software will continue to grow. In a world in which so many devices, not just smartphones, will be connected to the Internet of Things, the government’s theory that a licensing agreement allows it to compel the manufacturers of such products to help it surveil the products’ users will result in a virtually limitless expansion of the government’s legal authority to surreptitiously intrude on personal privacy.
This being a NY district court, the ruling has no direct precedential value (and certainly not in the Central District of California where the other big case is happening), but at the very least sets up the possibility of a circuit split that could get the issue to the Supreme Court relatively quickly. Also, just in general, it’s good to see a judge not just roll over for the DOJ on requests like this and give due recognition to the legal concerns at issue.