How a N.Y. judge inspired Apple’s encryption fight with Justice

February 17, 2016

Last October, prosecutors from the Justice Department asked a federal magistrate judge in Brooklyn to issue an order directing Apple to help the Drug Enforcement Administration bust security on an iPhone 5 seized from the home of Jun Feng, a suspected meth dealer.

The government had previously obtained many such orders against Apple and other companies under the All Writs Act, a 1789 statute that grants federal courts broad power to issue “necessary or appropriate” writs. The act has been a powerful tool for prosecutors since 1977, when the U.S. Supreme Court ruled in U.S. v. New York Telephone that the All Writs Act extends, under certain conditions, to private companies in a position to assist “the proper administration of justice.”

Apple has a long history of compliance with All Writs Act orders. The company helped New York investigators extract data from a suspected child sex abuser’s iPhone in 2008; rushed a data extraction in 2013 from the phone of an alleged child pornographer in Washington; and in 2015 provided federal agents in Florida with data the company extracted from a drug suspect’s phone. According to a Justice Department brief filed last fall, Apple never objected to All Writs Act orders in those cases – nor, for that matter, to any All Writs Act order directing the company to help federal investigators break into iPhones.

Apple’s policy of acquiescence abruptly changed in the Jun Feng case last year. And for all of the attention now focused on Apple’s announced opposition to a newly issued All Writs Act order directing the company to help Justice Department investigators break the passcode on an iPhone belonging to San Bernardino shooter Syed Farook, the Feng case is quite likely to produce a ruling before the Farook case.

The impending showdown over Farook’s phone is an irresistibly stark depiction of the competing interests of individual privacy and national security. But keep your eye on precedent from Feng.

It would certainly seem to be in Apple’s interest to push for a decision from the judge in the Feng case, U.S. Magistrate Judge James Orenstein of Brooklyn. Most judges grant All Writs Act orders based just on ex parte motions by prosecutors. In the Farook case, for instance, U.S. Magistrate Judge Sheri Pym signed the government’s proposed order after the Los Angeles U.S. Attorney’s office submitted a brief asserting that Farook’s phone may contain information about his alleged ties to terror groups. Prosecutors said they needed Apple’s help, via Apple-coded “backdoor” software or some other technical assistance, to permit government agents to test possible passcodes without erasing data from the phone, without having to input passcodes manually and without waiting between attempts. The magistrate didn’t give Apple a chance to respond before issuing the order.

But in the Feng case, Judge Orenstein refused to grant the government’s request for an All Writs Act order without briefing from Apple. In a ruling last fall, Orenstein said there were important differences between Apple and the telephone company in the 1977 Supreme Court case underlying the government’s All Writs Act argument. For one thing, Apple is not a public utility. Nor does it own the equipment at issue, Feng’s cellphone rather than the telephone lines in the old New York Telephone case. And unlike the phone company, which maintained telephone records for its own purposes, Apple does not have a business interest in defeating its customers’ security passcodes.

Most importantly, according to Judge Orenstein, at the time the Supreme Court decided the New York Telephone case in 1977, Congress had shown it intended to require phone companies to provide law enforcement agencies with exactly the sort of cooperation the government wanted from New York Telephone. By contrast, the judge said, Congress has conspicuously declined to act on Justice Department requests for legislation to compel cellphone companies to decrypt users’ passcodes.

Under such murky circumstances, “in which Congress is plainly aware of the lack of statutory authority and has thus far failed either to create or reject it,” Orenstein said, it is “far from obvious” that the All Writs Act applies.

Apple’s lawyers at ZwillGen jumped at the rare opportunity to explain why, in the company’s view, the law does not justify the government’s conscription of Apple employees. “The situation would be no different than if the government sought to use the All Writs Act to force a safe manufacturer to travel around the country unlocking safes that the government wants to access, or to make a lock manufacturer pick locks for the government,” it said. “This commandeering of Apple personnel and resources to do the government’s investigative work is materially different from asking a communication service provider to access or provide data on its network or in its possession.”

Brooklyn prosecutors responded that the government’s All Writs Act request easily met the Supreme Court’s test from New York Telephone, citing a 2014 ruling in similar circumstances from Manhattan federal magistrate Gabriel Gorenstein. They also noted Apple’s long record of cooperation with previous decryption orders.

As Apple and the government were in the midst of briefing the All Writs Act question in the Feng case, Jun Feng pleaded guilty. His plea prompted Orenstein to ask Apple and the government whether the All Writs Act dispute was moot. Both Apple and the Justice Department said it was not.

In fact, just last week, Apple’s lawyers sent a letter to Judge Orenstein, essentially urging him, in the name of judicial efficiency, to decide the recurring question of whether the All Writs Act “can properly compel a third party like Apple to assist law enforcement in its investigative efforts by bypassing the security mechanisms on its device.”

Apple’s letter to Judge Orenstein referred without specifics to other cases in which the government was trying to compel Apple’s cooperation – presumably an oblique reference to the Farook case, among others. In an order yesterday, Orenstein asked Apple’s lawyers to provide him with details about all of the cases, including where the government asked for writs, how Apple responded and whether usable data was recovered. Apple’s list is due on March 1.

In the Farook case, prosecutors are portraying the Feng case as an outlier, an singular exception to the government’s successful record of obtaining All Writs Act decryption orders. Prosecutors’ brief in Farook does not even cite the Feng case by its name, referring to it only in a footnote. And in any event, the brief said, a ruling from a Brooklyn magistrate is not binding on courts in California.

True enough. But Judge Orenstein seems to have emboldened Apple to begin what CEO Tim Cook called a “public discussion” of cellphone encryption and the data security threat from the government’s demand in the Farook case. Whatever happens next, whether it’s in the Feng or Farook cases, the public will know about it. We can thank Judge Orenstein for that.

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