One ruling is released in Apple’s battle with the government over given access to encrypted iPhones in court cases throughout the United States. As we pour over what Magistrate Judge James Orenstein’s 50-page memorandum and order means for Apple, we can also fairly easily interpret what it’ll mean for all smart devices, including those running Google’s Android. And Windows Phone. And Blackberry, if you wish. The whole lot.
To be clear, this is a separate case from the San Bernardino case that’s currently being brought before a congressional hearing VIA California courts. That’s the FBI aiming to open an iPhone owned by one of the San Bernardino shooters. This case we’re talking about in this article you’re reading centers on an iPhone owned by Queens, New York, resident Jun Feng – whom is suspected of involvement in drug trafficking.
What the DEA (with the assistance of the FBI) was attempting to do was to use the All Writs Act (AWA), an act which was originally part of the Judiciary Act of 1789. That’s a fairly old piece of law. It’s broad.
It’s intentionally broad.
This All Writs Act suggests that courts are able to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
Basically it says that courts can issue orders, like the one they sent to Apple.
But the order must exist within the “usages and principles of the law.”
The newest ruling here affirms that this All Writs Act does not allow the FBI, working in a case with a court, to circumvent what’s otherwise prohibited. There must be a separate ruling in which a particular order is allowed in order for the court to then go ahead and make said order.
As the WSJ points out, the closest such ruling is the 1994 Communications Assistance for Law Enforcement Act. This act, otherwise known as CALEA, allows law enforcements officials to “conduct electronic surveillance pursuant to court order or other lawful authorization.”
You can learn more about CALEA via the FCC.
The All Writs Act is sometimes known as “gap-filling.” As such, Orenstein’s memorandum reads as follows:
“The limits of such gap-filling authority are easily discerned. At one end of the spectrum, the AWA cannot be interpreted to empower courts to do something that another statute already authorizes (but that might have threshold requirements that cannot be satisfied in the circumstances of a particular case). At the other end, the government allows that a court cannot rely on the AWA (or, presumably, anything else) to issue an order that is explicitly or implicitly prohibited under a federal statute.”
Perhaps the most damning of oddities in the case thus far was Judge Orenstein’s question to the lawyers in this case. He asked whether the AWA could be invoked to force a drug maker to give a lethal injection to fulfill a ruling of capital punishment.
The Justice Department said, “Resolution of the death penalty hypothetical would depend on the particular law, facts, and circumstances if such a case were to present itself.”
Judge Orenstein was a bit taken aback.
In the final memorandum, Orenstein says:
“If the government cannot explain why the authority it seeks here cannot be used, based on the same arguments before this court, to force private citizens to commit what they believe to be the moral equivalent of murder at the government’s behest, that in itself suggests a reason to conclude that the government cannot establish a lack of unreasonable burden.”
The key here is burden.
Apple’s breaking in to a phone that it, itself has secured for its customers, is considered here to be a burden. A burden too large for the government to attempt to push Apple to overcome.
That’ll go for Google too. And Microsoft. And BlackBerry. And whatever other smartphone company that has a stake in this in the future – that’s everyone.
The AWA first appeared in 1789.
The debate on its interpretation – and changes to the law in general – cannot be ended here. And certainly not back in 1789.
Judge Orenstein writes that Congress needs to address the balance between the a requirement that “no door is too strong to resist lawful entry” and the need for electronic data to be shielded from so-called “unauthorized access and misuse.”
“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.”
To read more on the order released on the 29th of February, 2016, see the Electronic Privacy Information Center’s hosting of the entire memorandum from Magistrate Judge James Orenstein.