Co-written by Jenna McLaughlin
In the case that gave rise to Monday's ruling, the Drug Enforcement Administration had seized -- but, even after consultation with the FBI, claimed it was unable to access -- Feng's iPhone 5. The DEA and FBI said they could not overcome security measures embedded in Apple's operating system. The government thus filed a motion seeking an order requiring "Apple to assist" the investigation "under the authority of the All Writs Act" -- the same 1789 law the FBI is invoking in the San Bernardino case -- by "help[ing] the government bypass the passcode security." Apple objected, noting that there were nine other cases currently pending in which the government was seeking a similar order.
Judge Orenstein applied previous legal decisions interpreting the AWA and concluded that the law does not "justif[y] imposing on Apple the obligation to assist the government's investigation against its will." In a formulation extremely favorable to Apple, the judge wrote that the key question raised by the government's request is whether the AWA allows a court "to compel Apple -- a private party with no alleged involvement in Feng's criminal activity -- to perform work for the government against its will."
The court ruled that the law permits no such result -- both because relevant law contains limits on what companies like Apple are required to do, and because Congress never enacted any such obligations. Moreover, the judge said of the government's arguments for how the AWA should be applied: "The implications of the government's position are so far-reaching -- both in terms of what it would allow today and what it implies about congressional intent in 1789 -- as to produce impermissibly absurd results."
Perhaps most devastating to the FBI's case is Orenstein's recognition that the purpose of the FBI's request is not simply to obtain evidence in one particular case, but rather to grant the government broad, precedential authority to force Apple and other tech companies to take affirmative technological steps to cooperate with criminal investigations generally. That the FBI is seeking to establish broad precedent is a key argument made by Apple and its supporters in the San Bernardino case. To accept that the U.S. government has this power, ruled the court, is to vest law enforcement agencies with statutory authority that Congress itself never enacted:
"The Application before this court is by no means singular: the government has to date successfully invoked the AWA to secure Apple's compelled assistance in bypassing the passcode security of Apple devices at least 70 times in the past; it has pending litigation in a dozen more cases in which Apple has not yet been forced to provide such assistance; and in its most recent use of the statute it goes so far as to contend that a court -- without any legislative authority other than the AWA -- can require Apple to create a brand new product that impairs the utility of the products it is in the business of selling.
"It is thus clear that the government is relying on the AWA as a source of authority that is legislative in every meaningful way: something that can be cited as a basis for getting the relief it seeks in case after case without any need for adjudication of the particular circumstances of an individual case (as the arguments that the government relies on here to justify entering an AWA order against Apple would apply with equal force to any instance in which it cannot bypass the passcode security of an Apple device it has a warrant to search)."
The judge also accused the government of trying to manipulate secret judicial proceedings to obtain powers for itself against Apple that public debate and Congress would never permit. It is, Orenstein wrote, "clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking." Because the government wants the courts rather than Congress to grant this power, the "government's interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction " raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine."