Apple, Originalism, and the All Writs Act

 

iPhone_6_PLUS_preview_MG_1875Originalism as a method of judicial interpretation is now irrelevant, some claimed after the passing of Justice Antonin Scalia. It never really worked and now it’s destined to fade away.

Tell that to federal magistrate judge James Orenstein in New York, who yesterday ruled for Apple in a case in which the feds had invoked the All Writs Act to demand the unlocking of the phone of suspected drug dealer Jun Feng (the case parallels the far higher-profile case of the San Bernardino killer’s iPhone).

The Act grants federal courts broad power to issue “necessary or appropriate” writs, which the government would like to interpret to include types of writ Congress has declined to authorize explicitly even after considering doing so. In Judge Orenstein’s reasoning, it matters very much what the All Writs Act was understood to mean at the time of its passage in 1789.

The government’s position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law – which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it – would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress’s superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction.

This isn’t my area of law, but here are three observations:

  1. That Apple prevailed in this ruling suggests at least that its position on the All Writs Act in its dispute with the government is legally not a frivolous one.
  2. If and when the Feng or San Bernardino controversies reach the Supreme Court, it will be very much in order to marshal originalist arguments to reach the Court as a whole, not just Justice Clarence Thomas. To put it differently, originalism is alive and well in federal court in Brooklyn, and likely to be just as much so on First Street.
  3. Although there are some constitutional issues lurking about, the All Writs Act is a statute and Congress could enact a different statute tomorrow that it chose to make more protective of law enforcement or homeland security interests. Watch out for elected officials who react to a decision like yesterday’s by denouncing Apple, the courts, or both unless they also proceed to set forth a legislative fix that we could debate.

There are 7 comments.

  1. Duane Oyen Member

    As Richard Epstein and John Yoo point out, this is the right kind of balancing test. For a drug dealer, no. For a mass killer whose death eliminates his right to privacy, using a work-issued phone, whose phone’s owner has given consent to download all messages, Apple is wrong.

    The fact that the magistrate effectively applied the balancing test here reinforces the FBI position in the San Bernardino case. Apple should lose that one because its floodgates-open argument did not prevail in reality.

    • #1
    • March 1, 2016, at 3:10 PM PDT
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  2. Jerry Giordano (Arizona Patrio… Member

    Judge Orenstein’s decision did not only apply the fact-specific reasonableness test discussed by Epstein and Yoo on this week’s Law Talk. It included this issue, as an alternative basis for denying the government’s request, which makes appeal of the primary basis for the decision more difficult (perhaps impossible).

    However, Judge Orenstein also ruled that the All Writs Act never allows the relief sought by the government (which is Apple’s assistance in unlocking a password-protected Iphone). I haven’t read the San Bernardino case, but from the Law Talk discussion, this is precisely the opposite of the San Bernardino ruling. Also, this portion of Judge Orenstein’s ruling is contrary to the opinions expressed by Epstein and Yoo on Law Talk.

    Judge Orenstein based this portion of his ruling on the Communications Assistance for Law Enforcement Act of 1994 (“CALEA”). He concluded that CALEA did not allow the order requested by the government, and that this implicitly prohibited the All Writs Act from allowing such relief.

    • #2
    • March 1, 2016, at 4:31 PM PDT
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  3. Saint Augustine Member

    Yay for Originalism!

    Common-sense and true views never die.

    • #3
    • March 1, 2016, at 5:29 PM PDT
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  4. Walter Olson Contributor
    Walter Olson Post author

    Thanks for helpful comments. As I indicated in my post I’m new to some of these questions myself, but in any case very much aware that many reasonable people (including originalist-minded people) take a view that differs from Judge Orenstein’s.

    • #4
    • March 1, 2016, at 7:38 PM PDT
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  5. Chuck Enfield Coolidge

    Arizona Patriot: Judge Orenstein based this portion of his ruling on the Communications Assistance for Law Enforcement Act of 1994 (“CALEA”). He concluded that CALEA did not allow the order requested by the government, and that this implicitly prohibited the All Writs Act from allowing such relief.

    Strictly a layman’s perspective here, but the CALEA argument is lame. If I follow it correctly the logic goes:

    1. Entities covered by CALEA are not forced to decrypt the traffic they intercept. (indisputable)
    2. Apple is exempted from CALEA by virtue of being an “information service”. (questionable)
    3. Therefore Apple, a company not covered by CALEA, can’t be compelled to decrypt information on a device not covered by CALEA, because congress if it expected that kind of assistance would have demanded it in CALEA.

    It amounts to saying if congress passed a law even remotely related to the issue at hand, and that law fails to require the assistance compelled by the writ, then the writ cannot be enforced. If that reasoning holds up, the AWA is dead as a matter of law. That may be for the best, but I doubt it will withstand review. Judges covet their power as much as the next functionary and will be loath to give it up.

    • #5
    • March 1, 2016, at 8:09 PM PDT
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  6. berzerker Member

    Chuck, the purpose of CALEA was to require a subset of companies to give even greater levels of assistance to law enforcement than would generally be required under All Writs. So if Congress rejected the idea of forcing companies to decrypt customer data under CALEA, then they clearly didn’t think it would be required under All Writs either. It’s the only logically consistent way to read the statutes.
    Under the FBI interpretation of All Writs, CALEA is a dead letter because the All Writs Act already had granted the FBI even more extensive powers than CALEA was attempting to provide.

    • #6
    • March 2, 2016, at 1:04 AM PDT
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  7. Chuck Enfield Coolidge

    berzerker:So if Congress rejected the idea of forcing companies to decrypt customer data under CALEA, then they clearly didn’t think it would be required under All Writs either.

    That’s not at all clear to me. Decrypting traffic intercepted by an ISP can be very different from decrypting data stored on an endpoint. In the case if the ISP, the encryption algorithm is determined by the endpoints. Since the ISP is no better equipped to decrypt that data than are law enforcement agencies, it would be ruinous to the industry to require them to decrypt it on-demand.

    The same is not true of the encryption on an iPhone. Apple is much better equipped than law enforcement to decrypt data stored on an iPhone using Apple’s software and keys. Apple doesn’t deny this. That’s not to suggest it’s trivial, but it’s different. Despite both scenarios involving “phones” and “encryption”, it would be quite reasonable for congress to reject A without implicitly rejecting B.

    A better comparison would be if Apple were to crack the phone and discover data encrypted using 3rd-party keys. Apple would have no advantage over law enforcement in that case.

    • #7
    • March 2, 2016, at 4:27 AM PDT
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