While most eyes looked to the left coast as battle was joined between Apple and the government, a quieter battle was being fought in the Eastern District of New York before Magistrate Judge James Orenstein. Not exactly the same, but close enough. As the sides jockeyed for position, to capture the hearts if not the minds of America, Mag. Orenstein was working away at Cadman Plaza, without the glare of the klieg lights that were shining on Magistrate Judge Sheri Pym.
Then, boom. Seemingly out of nowhere, Mag. Orenstein issued his decision, a 50-page opinion, covering the very issues under intense scrutiny in Silicon Valley. If that name sounds remotely familiar, it’s likely because Mag. Orenstein played a significant role in the “Magistrates’ Revolt,” a cadre of federal magistrates who refused to sign off on any warrant the government put under their noses.
Orin “Eagle Eyes” Kerr, who is critical of the revolt, immediately picked up on this detail, that the decision came from Mag. Orenstein, and pounded it on the twitters. His point, that Mag. Orenstein wasn’t as inclined to love the government and cater to its heartfelt needs as others, was beyond question. So while this decision coming from Mag. Orenstein might blunt the “surprise” value, it didn’t bear upon whether he was right or wrong, or the intellectual and legal integrity of Mag. Orenstein’s opinion.
At Motherboard, however, Sarah Jeong sought to recap the remarkably lengthy (for a magistrate) decision.
Orenstein was sounding the alarm. For him, this one warrant application over a low-level meth dealer’s outdated iPhone was no minor matter—it was a quiet government attempt to bypass a yet-unsettled, highly acrimonious public debate over whether tech companies should design their products to enable government surveillance. Small wonder then, that on Monday, Orenstein finally denied the government’s motion in a blistering 50-page slap to the face.
While Orenstein’s decision can’t bind another magistrate judge all the way out in California, Magistrate Judge Sheri Pym will certainly be reading the decision before she makes up her own mind. Indeed, Orenstein has released his opinion right in time for the writers of amicus briefs (which due the end of the week) to quote from his ruling.
Was this unbelievably fortuitous? Was this pure kismet that Mag. Orenstein issued his opinion just in the nick of time, as amici were scrambling for legal arguments to proffer to Mag. Pym, and Mag. Pym was to decide Apple’s fate?
That Mag. Orenstein reads the papers and was fully aware of the storm brewing in California is hardly a stretch. That Mag. Orenstein, well aware that his case was further down the road than Mag. Pym’s, and ripe for a decision, decided that it would be a really good idea to start dotting his “I”s and crossing his “t”s, so that his opinion on many of the same issues that were presented to Mag. Pym would be out there first, isn’t a stretch either.
Certainly, if a magistrate judge thinks he’s got a sound legal opinion that could frame the future of the law, there is nothing wrong with his wanting to be in the game, to have his opinion included in the debate. Given Mag. Orenstein’s view that the government was overreaching, that the All Writs Act of 1789 failed to authorize what they want it to, that this was a critical juncture in the law for the protection of digital privacy, why wouldn’t he want to influence the legal determination?
But Jeong’s post takes it beyond the legitimate interest of a judge in offering an opinion to influence the future of law.
It seems that even before the order came down, Apple knew what was going to happen. On February 12, four days before the California order was issued, Apple sent a letter to Magistrate Judge Orenstein, asking him to rule in the New York case.
The meth dealer had since pled guilty, and even though the government was still pursuing the court order, it was not exactly a priority anymore. But Apple wanted a ruling from Orenstein, fast. In its letter, Apple alluded to “additional requests similar to the one underlying the case before this Court” and said that the company had “been advised that the government intends to continue to invoke the All Writs Act in this and other districts.”
Orenstein replied on February 16, asking Apple to list the specific cases it was hinting at. Before they could reply, Orenstein had already had his answer: that very day, the California ruling came down, compelling Apple to build a backdoor in order to hack the dead San Bernardino shooter’s iPhone.
It’s unclear whether the implication of this description of the sequence of events was intentional, but it is clearly disconcerting. Does Jeong suggest there was a conspiracy on the part of Apple and Mag. Orenstein to rush out a decision to influence Mag. Pym?
On Thursday, Apple filed a motion to vacate the California magistrate judge’s initial ruling. It is no coincidence that Orenstein’s decision came down the following Monday, inserting himself neatly into a debate around a case on the opposite side of the country.
That Mag. Orenstein, of his own volition, wanted to “insert himself” into the debate is a perfectly fair, perfectly fine, choice to make. His opinion as a magistrate judge is every bit as worthy of consideration as any other magistrate’s. And his opinion will stand or fall on its own legal and intellectual merit, regardless of any attack on his perspective or lack of adoration for the government’s “save us from the terrorists” appeals to emotion.
But, if the implication of Jeong’s post is correct, and Mag. Orenstein’s opinion was the product of Apple’s extrajudicial influence, of a conspiracy that included a litigant to influence the determination of another magistrate in another district in another case, then it raises a different set of concerns.
It’s not that Mag. Orenstein’s opinion isn’t a great piece of legal analysis, and one that has my full support. It does. But if, as Jeong suggests, there was some sort of undue effort by Apple and Mag. Orenstein to get out an opinion that Apple (and its amici) could use to its advantage in San Bernardino, then it’s no different than a secret phone call between judges and the United States Attorneys’ bureau chiefs giving the secret wink that they would really appreciate a warrant signed or a motion denied, law notwithstanding.
Absent evidence to support the suggestion of a conspiracy between Apple and Mag. Orenstein, it would be decidedly wrong to impute any impropriety to Mag. Orenstein’s issuance of his opinion in favor of Apple and against the government. But then, what purpose is served by raising such a suggestion, except to taint an opinion that should be capable of withstanding scrutiny on its merits rather than innuendo?