Should the courts order Apple to help the Federal Bureau of Investigation unlock an iPhone seized from a murderous terrorist or a dangerous criminal? For law enforcement officials across the country, this is a question of public safety, even of
Should the courts order Apple to help the Federal Bureau of Investigation unlock an iPhone seized from a murderous terrorist or a dangerous criminal? For law enforcement officials across the country, this is a question of public safety, even of life and death. But according to a federal magistrate in Brooklyn, the real issue in such cases is how much power an 18th century law grants the federal government to force innocent parties to do its bidding. He was right about that, even though his ruling in a little-watched fight between Apple and the FBI could make it harder for investigators to uncover the clues criminals and terrorists might hide in their encrypted devices.
The case before U.S. Magistrate Judge James Orenstein is far less exotic than the more celebrated one in Riverside, Calif., where Apple is resisting a court order to help the FBI decrypt an iPhone used by San Bernardino shooter Syed Rizwan Farook. The Brooklyn case involves an iPhone 5s the Drug Enforcement Agency seized from a suspected drug dealer, Jun Feng. Although Feng pleaded guilty, the feds contend they could learn more about his suppliers and customers by searching the phone. Rather than trying to break into the locked phone through brute computer force, the Justice Department wants Apple to circumvent the passcode, as it has done roughly 70 times before.
But the magistrate balked, troubled by the way the Justice Department was trying to use the All Writs Act — a law that dates back to the very first Congress in 1789. The point of the statute is to give federal courts the power to carry out the orders they issue in situations where Congress hasn’t explicitly provided (or denied) that authority. For example, the All Writs Act has been used to compel phone companies to help law enforcement agents monitor the phone lines a court has authorized for surveillance.
Despite the statute’s broad reach, Orenstein ruled that All Writs couldn’t be used to force Apple to unlock a phone it had no connection to other than having built and sold it. On multiple occasions in the past two decades, Orenstein wrote, Congress has considered whether to require communications and technology companies to help federal agents gather evidence. And although lawmakers imposed such a duty on phone companies in a 1994 wiretap statute, they exempted companies that provide information services such as those Apple provides. To allow courts to create obligations after Congress has refused to do so, Orenstein ruled, would be a violation of the Constitution’s separation of judicial and legislative powers.
Back in Riverside, the FBI is seeking to use All Writs to go one consequential step further. It’s trying to compel Apple to create a product — a new version of its iPhone operating system — that removes the security features that make its passcodes so hard to hack. That’s directly contrary to Apple’s commercial interests, in addition to being a potential threat to millions of innocent iPhone owners who stored sensitive personal information on their devices.
The government’s ability to enforce the law and protect the public is vital, but so, too, is the public’s ability to limit the power it grants the government through the legislative process. Orenstein’s ruling makes that point emphatically.
— Los Angeles Times
