Apple And The Magistrate’s Conspiracy

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 For him, this one warrant application over a low-level meth dealer’s outdated iPhone was no minor matter—it was a quiet government attempt to bypass a yet-unsettled, highly acrimonious public debate over whether tech companies should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?

28 thoughts on “Apple And The Magistrate’s Conspiracy

  1. Jamies Vick

    It’s not like me to post anonymously, but as a lawyers often damned to appear before His Royal Magistrate Orenstein, I have no choice.

    And I write to praise him in this instance, for it is his in his likely alienation of the entire Eastern District bar and disqualification from furtherb advancement that he has found the political freedom to write this important opinion. Jamie is a talented egomaniac, and if unlike most former prosecutors on the bench his ego has thereby granted him this (again) the spine to stop a massive government power grab, for a change we will perhaps have benefited from his otherwise inexcusable and injudicious conduct.

    1. SHG Post author

      What a coward. It’s kinda fascinating to see who hops aboard what train at what point and to what end. As experience teaches, good decisions don’t always come from the most likely sources.

      1. Jamies Vick

        Not that surprising. Jamie has tended in this direction, substantively, in the past. Even cowards can acknowledge that. It’s just the other things he can threaten and do to us and our clients, to which we have no real recourse, that makes us not as brave as you. But who is?

          1. Jamies Vick

            Yeah, and it’s weird, because usually I like being called a coward.

            But then again that’s usually when I’m paying someone to say it and I’m wearing a leather diaper.

            1. SHG Post author

              But remember, only I know who you are, so I can call “Jamies Vick” anything and nobody else will know. Hope you enjoyed it at least. Please remind payment immediately. It will make you feel better. Trust me.

  2. Patrick Maupin

    > … what purpose is served…

    Presuming impropriety produces page hits.

    Apple obviously filed the letter correctly with the court — it was widely publicized. Orenstein is obviously a smart dude, and a word to the wise is sufficient.

    Unless there is something improper in the letter itself, there’s no there there. Apple obviously would have preferred this ruling earlier, but wasn’t devoting enough resources to it. It was probably an “Oh, shit!” moment inside Apple when one lawyer asked another what was happening in the New York case, and the answer was “Orenstein is waiting for a filing from us.”

    If only they had better legal case management software.

    1. SHG Post author

      Yup. I have no suspicion that there is anything untoward in Mag. Orenstein’s opinion or its timing, which is why the implication of some impropriety in the absence of any evidence is so disturbing. This is messy enough without tainting Mag. Orenstein’s decision by the suggestion that it was anything other than his fully legitimate opinion.

      1. Patrick Maupin

        Thinking further, it’s entirely likely that Apple was originally more than happy to avoid any contested ruling at all on the application of the AWA, since any decision is a crap shoot, even if you think you know the odds.

        But even if Apple’s delay and subsequent change of heart was strategic, you can’t fault them for that, or even accuse them of forum-shopping — the government itself bought the plethora of forums and delivered them all to Apple’s doorstep.

        And you certainly can’t fault Orenstein for his pointed questions and observations that might lead Apple to believe the odds in his courtroom were pretty good, or for having the acumen to realize that Apple was right about the judicial efficiency issue, and that he had a short window in which to help with that on the next case.

        1. SHG Post author

          Your first paragraph is important: nobody knows with certainty how a decision will come out, despite indications or inclinations. Every lawyer has stories about how they thought they had it won, only to crash and burn. So pushing for a timely decision for use in an unrelated matter can be a very risky proposition. If it’s an adverse ruling, it crushes you instead of helps you. And unless you know in advance with certainty that it’s a win, you don’t ask for it.

          As for the rest of it, none of that is in issue, but that’s not what the post is about.

          1. Patrick Maupin

            I was just trying to point out that a conspiracy to do that which is legal and proper isn’t really that much of a conspiracy anyway.

            On re-reading the article, I think you’d practically have to be a lawyer to think that Jeong is implying any impropriety on the part of the magistrate.

            1. SHG Post author

              I have a suspicion that Jeong doesn’t even realize what she did. In a matter this controversial, any hint of impropriety can be used to undermine the merit of Mag. Orenstein’s decision, and there is more than a mere hint in the way Jeong describes how the order came out at this incredibly fortunate moment in time.

              Remember, this is all about law, so that non-lawyers might not spot insinuations of a breach of judicial ethics doesn’t really matter. To lawyers, the implication, if not the evidence, should be very clear. Hopefully, that didn’t happen just because of careless writing on Jeong’s part. As she’s a lawyer, she should know better than to create the appearance of taint if that’s not what she intended to do.

  3. PDB

    Here’s my questoin: Who the f— is Sarah Jeong and why do her insinuations of a conspiracy mean anything?

    1. SHG Post author

      This is a soapbox issue more than a Sarah Jeong issue. Regardless of Jeong, Motherboard is sufficiently big soapbox to give the insinuation credibility, whether warranted or not.

  4. John Barleycorn

    Park in the “white zone” of long ago if needed and feed upon any facetious natures

    How this entire subject floats with you is a mystery? I would hope you are carefully considered quandaries that reinforce your nature.

    Either way, past time, you move this subject material to the front page rotation.

    Catch is active. Court is fielding. Swing!

    Oh yeah…… the ball.

  5. Jim Tyre

    OMG Scott, your influence is almost limitless.

    Orenstein issued his order on Friday. But it wasn’t until literally as I was reading your post that Apple’s lawyers filed it as a Notice of Supplemental Authority in the California case. Clearly, Apple’s lawyers didn’t think to do so until they read your post!

    1. Jim Tyre

      I misspoke. Orenstein’s Order was this Monday, not last Friday. Still, the point is the same, one would have expected APlle to file it in California by no later than yesterday.

  6. marc r

    “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.” And “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…”

    The “letter” could be one of several memorandum filed in support of its motion for protection against the required steps to execute the government’s warrant execution. The quote implies some ex parte letter on corporate stationary, rather than a party making a properly routine ecf docket entry filing.

  7. Brian Urban

    How long does it take to write a 50 page opinion? As an engineer, not a lawyer, producing 50 pages of well reasoned and properly researched document would take me longer than four days.

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