Magistrate Judge James Orenstein of the E.D.N.Y has issued a 50-page order in a case similar to the Apple v FBI case that has been in the news. In this case too, the government sought to have Apple defeat the passcode security limit on an iPhone so the government could extract the data pursuant to a valid search warrant.
The opinion is a slam-dunk win for Apple, rejecting the government’s All Writs Act (AWA) request on multiple grounds. Among them is that Apple does not meet the test in the leading Supreme Court precedent, New York Telephone due to Apple’s distance from the alleged crime and the burden to Apple of complying. There’s two constitutional arguments: one on separation of powers, that an absence of prohibition by Congress should not be treated as permission, and one on the implications of the government’s expansive view of the AWA, under which any of us could be conscripted to do things we might hate doing to help the government in investigations or worse. (Judge Orenstein gives the I hope extreme example of a drug company forced to produce an execution drug against its will if the government has no other source of supply.)
Apple also wins on discretionary grounds.
This opinion is a thoughtful and on just about all points persuasive work, and it should be influential as these cases trundle through the legal system.
A brief history of the surveillance debate:
2012: "Mass surveillance is fine — if it wasn’t, you’d see major corporations trying to court new business by building in crypto tools that kept out the surveillance agencies. The fact that they’re not doing this tells you that surveillance opponents are an out-of-touch, paranoid minority."
2016: "Mass surveillance is necessary — when companies use crypto tools as ‘marketing ploys,’ they’re getting in the way of something we all agree is proportionate and legitimate!"
Time to salute Robert Kagan. I do not share his ideology but I can recognize a patriot writing in Trump is the GOP’s Frankenstein Monster. Read it all, savor the historical allusions, but here’s the takeaway:
We are supposed to believe that Trump’s legion of “angry” people are angry about wage stagnation. No, they are angry about all the things Republicans have told them to be angry about these past 7½ years, and it has been Trump’s good fortune to be the guy to sweep them up and become their standard-bearer. He is the Napoleon who has harvested the fruit of the revolution.
There has been much second-guessing lately. Why didn’t party leaders stand up and try to stop Trump earlier, while there was still time? But how could they have? Trump was feeding off forces in the party they had helped nurture and that they hoped to ride into power. Some of those Republican leaders and pundits now calling for a counterrevolution against Trump were not so long ago welcoming his contribution to the debate. The politicians running against him and now facing oblivion were loath to attack him before because they feared alienating his supporters. Instead, they attacked one another, clawing at each other’s faces as they one by one slipped over the cliff. New Jersey Gov. Chris Christie got his last deadly lick in just before he plummeted — at Trump? No, at Rubio. (And now, as his final service to party and nation, he has endorsed Trump.) Jeb Bush spent millions upon millions in his hopeless race, but against whom? Not Trump.
So what to do now? The Republicans’ creation will soon be let loose on the land, leaving to others the job the party failed to carry out. For this former Republican, and perhaps for others, the only choice will be to vote for Hillary Clinton. The party cannot be saved, but the country still can be.
We need more like this.
PS. Has the GOP rehabilitated David Frum yet?
Peter Shane, What Do We Call Options Worse Than “Nuclear?”
Interestingly, every Constitutional stratagem he comes up with for forcing or blocking a Supreme Court nominee seems to have a possible counter-move for the other side. The Constitution really is pretty finely balanced until the Supreme Court mucks it up with decisions like Noel Canning.
The government’s attempt to get Apple to build a bespoke operating system so they can brute force access to an iPhone without it erasing its data has led the media to some of us who were in the first round of the crypto wars. Today was my turn. A few seconds on CBS in the Morning, ink in a nice explainer by Steve Lohr in the New York Times. I also spoke to the LA Times and the Wall St. Journal, but I haven’t seen what if anything they made of it.
I presume they found me because I wrote the first US legal article on law and encryption: The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution. There’s also a shorter sequel that some find easier to read, It Came From Planet Clipper.
The Apple case potentially raises at least these major legal issues:
- To what extent the government can use the All Writs Act to compel people unrelated to a case to provide unwilling technical support–here, Apple says, 12-40 man-weeks of expert engineering–to the government’s efforts to disable a security system in order to effectuate a search warrant or similar court order;
- Whether ordering a firm to write code (here, a bespoke phone OS), is a form of compelled speech violating the First Amendment
- Whether ordering a firm to digitally sign that code (or anything else) is an impermissible form of compelled speech
- Whether if a court can issue this order requiring assistance to disable a security system without violating the Constitutions, it follows that Congress could also legislate to forbid people from building strong security systems that the government cannot break into unassisted — and, most critically, whether that would mean the government could forbid the deployment of strong cryptographic tools without back doors. (This last issue was the main subject of the two articles I linked to above. It’s not a simple question.)
Although the Apple issue likely will be decided on non-constitutional grounds, the parties are making a record on the constitutional issues with an eye to a set of appeals that could go as far as the Supreme Court. The issues are important and interesting, so the media is right to treat this as a big deal.