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.

Filed Under: all writs act, calea, dea, doj, encryption, fbi, james orenstein, jun feng
Companies: apple


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  • icon
    That One Guy (profile), 1 Mar 2016 @ 4:56am

    "Why else did you think we asked?"

    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.

    Given that's pretty much exactly the point of their argument, glad the judge caught it and called them out on it. If the fact that the software on a device means that the owner of the software, not the owner of the device is the one that can be forced to unlock it(and all without that pesky fifth amendment getting in the way) then as more and more such devices are integrated into everyday life, the scope of how much surveillance they can compel would expand enormously, all without a single law passed.

    reply to this | link to this | view in chronology ]

    • identicon
      Rich Kulawiec, 1 Mar 2016 @ 7:03am

      Re: "Why else did you think we asked?"

      I think this makes a compelling argument for open-source software in the IoT. It's the only possible way to ensure that neither the manufacturers nor the government have a technical or legal back door into it.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Mar 2016 @ 3:11pm

        Re: Re: "Why else did you think we asked?"

        With open source software though, ANY rightsholder could be compelled to do something under AWA. Not quite as scary, but still makes me uneasy. I hope this judge's view prevails.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Mar 2016 @ 12:22am

          Re: Re: Re: "Why else did you think we asked?"

          ANY rightsholder could be compelled to do something under AWA.

          The basic protections against this is the anarchistic multinational distributed source code development cycle where anybody can look at the source code without having to notify the code maintainers that they are doing so. While this is not foolproof, it does pose a high risk of discovery for any obvious backdoors.

          reply to this | link to this | view in chronology ]

    • icon
      dddimwrong (profile), 2 Mar 2016 @ 10:33am

      Re: "Why else did you think we asked?"

      In the end it makes no difference to criminals and cartels which way the Apple/FBI case is ultimately decided. Those that take security seriously have now been told that the FBI doesn't have the ability right now to break certain security. You can bet that even average criminals are now putting encryption and other measures on their phones that are well beyond decryption in any meaningful time frame.
      Think 100 years under excellent conditions to break most good security routines.

      The horses have left the barn, better and even more difficult/secure encryption and security measures are being developed. The race is on to create more unbreakable security. Unbreakable encryption exists and recent events have prompted more people than ever to use it. For the first time in modern civilization we have the ability to create something that is truly private and can only be seen by those that we wish to see/hear it.
      The Privacy of the individual is NOT going away anytime soon. It took a long time for civilization at large to gain this level of privacy and I for one am not giving it up.

      And people will leave behind digital files where the key is unknown and that information will never be retrieved. That's just how it goes. When a phone or digital device is damaged severely enough it becomes unusable and the information is lost. The government will just have
      to get used to not being able to read most digital devices without the owner's cooperation.

      The privacy right of the individual, outweighs and directly counteracts the government's desire to be the omniscient overlord of its subjects/citizens. The FBI and possibly congress can demand to be omniscient overlords however every computer/phone user on this planet already possesses the ability to prevent such an over-reach.
      Unfortunately for the powers that be, those not in power possess privacy that can't be taken away. People in power around the world are slowly coming to the realization that the balance of power has shifted to the masses and the masses have the ability to expose and overthrow the powerful. The root of this power is encryption and the power of encryption is now in the hands of the masses and the masses will not give it back.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Mar 2016 @ 6:51am

    No doubt they will call him out for being lenient on terrorism, with the hope no one asks them why they define basic citizen rights as terrorism

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Mar 2016 @ 6:55am

    House Judiciary Hearing TODAY

    United States House of Representatives
    Judiciary Committee

    The Encryption Tightrope: Balancing Americans’ Security and Privacy
    Tuesday, Mar 1, 2016, 1pm EST
     . . .

    Witness Panel 2

    • Mr. Bruce Sewell
    Senior Vice President and General Counsel
    Apple, Inc.
    Sewell Written Testimony.pdf (86.7 KBs)
    •  . . .

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Mar 2016 @ 7:20am

      Re: House Judiciary Hearing TODAY

      C-SPAN 3 Live at 1pm EST, for those who'd rather watch their webcast, than the webcast from the House Judiciary website.

      (I'm not exactly sure how this works, but C-SPAN frequently has different camera angles, compared to the official committee webcast.)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Mar 2016 @ 7:11am

    The Fed will keep pursuing this infringement of our civil liberties, using our tax dollars, until some party gives in due to exhaustion. Some will give all, and we shall overcome.

    reply to this | link to this | view in chronology ]

  • identicon
    Whatever, 1 Mar 2016 @ 7:50am

    Noooo! Noooooooooooooooo!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Mar 2016 @ 8:14am

      Re:

      Noooo! Noooooooooooooooo!
      If I was running Gitmo, the only TV the prisoners would ever get would be 3 hour committee hearings. I'd make 'em watch local city council meetings—for good behaviour, they'd get state legislatures. By the time I was through, they'd look at the U.S. House and Senate committee hearings as special treats.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Mar 2016 @ 4:46pm

      Re:

      As much as this is a pretty blatant spoof, it's actually rather accurate...

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 1 Mar 2016 @ 8:11am

    A quick circuit split isn't necessarily a good thing right now, simply because we currently have 8 Supreme Court justices rather than 9, and it's looking like it might well be an unusually long time before we get a 9th justice back.

    Without going into any of the politics behind the whole mess, let me simply state two well-established and non-controversial facts.

    1) The current court is a highly polarized and evenly-balanced one. It had lots of 5/4 decisions, and the one who died recently is one of the 5.

    2) In the case of an even-numbered Supreme Court decision that splits 4/4, the decision under review stands.

    Therefore, if the California decision gets quickly appealed up to the Supreme Court as presently constituted, there's a high chance that it will not be overturned.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Mar 2016 @ 8:54am

      Re:

      Assuming the Court of Appeals upholds the government's position (has it actually got that far yet?). If the Court of Appeals decides for Apple and the DOJ files certiorari with the Supreme Court...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Mar 2016 @ 9:03am

        Re: Re:

        … has it actually got that far yet?
        No. The most pertinent decisions that I'm aware of so far have all been at the magistrate judge level.

        Correct me if I'm wrong, but I believe the next level of review is de novo(?) by the district judge.

        reply to this | link to this | view in chronology ]

        • icon
          GMacGuffin (profile), 1 Mar 2016 @ 9:15am

          Re: Re: Re:

          ... I believe the next level of review is de novo(?) by the district judge.

          I don't know from criminal procedure, but did notice in Orenstein's (fabulous) Order that he was careful to point out, several times, that he was making discretionary calls on various elements. That would seem to indicate that his Order may be reviewed on the abuse of discretion standard. As the Magistrate basically works for the Article III District Court judge (taking the load off), I would hope that means the govt has to go to the appellate court, who can only overturn it for clear abuse of discretion, which is a tough standard to meet.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 1 Mar 2016 @ 9:49am

            Re: Re: Re: Re:

            I don't know from criminal procedure
            Is this a F.R.Crim.P. Rule 59 matter?

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 2 Mar 2016 @ 6:27am

            Re: Re: Re: Re:

            … the Magistrate basically works for the Article III District Court judge (taking the load off)…
            The Magistrate Judge “takes the load off” the District Judge by routinely granting extraordinary relief?

            If I was viewing all this on a clean slate, I would view the matter as ancillary to a criminal case. The government is not requesting the production of evidence or testimony by a third party in a criminal case, but rather, under the All Writs Act, the government prays for compulsion in the nature of an injunction directed to a third party.

            Likening the matter to a warrant does not create the possibility that government agents may break the close of Apple's headquarters in Cupertino, and vi et armis compel Apple engineers to perform a specific service.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Mar 2016 @ 9:49am

      Re:

      Hmm. But what if this New York decision is appealed first? Once there is a circuit court decision, even though it's not binding on other circuits it might still have some impact on them.

      reply to this | link to this | view in chronology ]

    • identicon
      SpaceLifeForm, 1 Mar 2016 @ 1:35pm

      Quickly appealed to SCOTUS? No way!

      The lawyers must make their money.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Mar 2016 @ 8:31am

    Can I just say congratulations and thank you to Magistrate Judge James Orenstein for using the phrase "Internet of Things" in an official ruling? That was the 2nd most awesome part of this article!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Mar 2016 @ 9:00am

    I nominate this judge for the supreme court..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Mar 2016 @ 4:29pm

    Sarcastic Parody Remark

    All your phone are belong to us.

    -FBI


    /Sarc

    reply to this | link to this | view in chronology ]


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