By Andrew C McCarthy ~
Congress, not the courts, should sort out competing claims of privacy and security in today’s high-tech communications.
In a ruling that could have ramifications for Apple’s battle with the FBI over the iPhone of the San Bernardino terrorist, a federal magistrate-judge in Brooklyn yesterday denied the government’s request in a similar case to compel Apple to assist the government in searching the iPhone of a suspected narcotics trafficker. Magistrate Judge James Orenstein rejected the Justice Department’s claim that the All Writs Act authorizes the court to coerce Apple’s cooperation.
An unsettling aspect of the cases on both coasts is the Justice Department’s urging of the All Writs Act on the courts as a capacious source of power to coerce assistance from third parties. Interestingly, while Apple has vigorously contested the AWA order in California, the tech giant itself suggested that the Justice Department seek one in Brooklyn. Apple was willing to help in the Brooklyn case (as it has done in approximately 70 other cases), but only if there was an order, which the company even helped the Justice Department draft. It was Magistrate Judge Orenstein who was troubled about whether he had the authority to issue the order. Only when the court hesitated and asked for more briefing on the AWA did Apple do an about-face and oppose the issuance.
The AWA, which is now codified at section 1651 of Title 28, U.S. Code, was originally enacted by the first Congress in 1789 – a time when federal courts played a much more modest role in American life. The idea was that, in the few areas where the courts were empowered to act by the Constitution or a statute, they had some residual authority to issue orders necessary to exercise these grants of jurisdiction. It was never the purpose of the AWA to grant courts a limitless reservoir of power to, in effect, legislate in areas where Congress had not enacted controlling law – or, worse, to assume powers Congress had considered giving to judges but decided not to.
The dispute between the government and Apple involves an attempt to force the company, by judicial order, to assist the FBI (which, in Brooklyn, is assisting the DEA) in circumventing the personal identification numbers (PINs) of iPhones that have been lawfully seized in criminal investigations. The FBI does not have this technological capability and is thus unable to execute warrants to search the contents of these phones.
Congress has enacted no statute that explicitly authorizes a court to press third parties into service in this manner. As I recounted in writing about the Apple controversy a little over a week ago, it was assumed from the dawn of communications technology that the burden was on the government to develop the means of intercepting communications and stored information. That assumption, however,
veered off the rails when, in 1977, the Supreme Court saw fit to commandeer the New York Telephone Company into the FBI’s wiretapping operations. The decision rested on the dubious theory that, as a highly regulated, monopolistic public utility, the phone company was a virtual arm of the government. In fact, the Court stressed that New York Tel had “a duty to serve the public”; that it had a “substantial interest” in helping the FBI, since the government’s objectives were not “offensive” to the company’s; and that the assistance it was being forced to provide was “meager” and not “in any way burdensome.”
The Court purported to find this authority to compel such assistance from third parties in the AWA. It was, to say the least, a stretch – one that needs even more stretching to be applied to Apple. As I argued in the column: “The company is not a public utility, it does not have a duty to serve the public, its interests in enhancing privacy do not align with government interests in enabling intrusion, and the demands the government is making would be burdensome.” Yet, in jurisprudence as in legislation, the big-government ratchet inevitably expands the scope of the state’s power to coerce private actors. Consequently, the AWA precedents that have piled up since 1977 seem to stack the deck against Apple.
Not, however, according to Magistrate Judge Orenstein. He concluded that the Justice Department’s construction of AWA power was too broad. Significantly, he added that Congress had considered legislation to give courts the authority to issue orders of the type the government is seeking but had not enacted such legislation – meaning, in Orenstein’s view, that issuing such an order would be a judicial usurpation of Congress’s power.
Finally, the magistrate judge reasoned that, even if the AWA theoretically vests courts with the power to issue such orders, it would be inappropriate to compel Apple, for three reasons: The company has nothing to do with the criminal conduct alleged; the requested order would be burdensome; and the government failed to prove that Apple’s assistance is necessary, since law-enforcement agents represented, in yet another Brooklyn case, that they have the technology needed to override PINs. (The Justice Department now claims this technology is “finicky,” which did not impress Orenstein.)
It is noteworthy that the Brooklyn narcotics case involves an iPhone 5 that uses Apple’s operating system iOS7 – the same as the phone in the San Bernardino terrorism case.
This is clearly a complex area of law that cries out for legislative guidance. The interwoven issues of privacy, trade secrets, national security, counterterrorism, criminal investigations, and fast-evolving technology are delicate and intricate. The task of balancing them should not be delegated to the courts; there should be a legislative solution, with lawmakers weighing the competing interests of the many relevant actors removed from the peculiar exigencies of individual criminal cases.
The government’s effort to exploit the All Writs Act, while there is undeniably precedent for it, bypasses this vital process. It discourages executive-branch cooperation with Congress: Why would the Justice Department work with lawmakers – who will weigh the needs of all interests, including some important privacy interests that are in tension with the executive branch’s law-enforcement and national-security missions – when judges may be more accommodating? The executive branch may calculate that fashioning new law in court on a case-by-case basis – with many interested parties not represented, as they would be in a legislative process – will produce a more favorable law-enforcement outcome than would a statute.
The ruling in Brooklyn upsets those calculations. Of course, Magistrate Judge Orenstein’s 50-page decision could be reversed on appeal; moreover, it is not binding on the federal court in California, though Apple will certainly use it like a club. The optimal result would be to stir Congress to action. The All Writs Act has its place – Apple’s claim that it is suspect just because it is old is specious. But it was not designed to broker the competing claims of privacy and security in an era of rapidly evolving technology in which security often depends on privacy.
A version of this piece previously appeared on National Review Online.