The Government’s Next Bite of the Apple

When Eastern District of New York Magistrate Judge James Orenstein issued his opinion, that the government couldn’t use the All Writs Act to compel Apple to create the backdoor it so desperately wanted, cheers could be heard across the internet. After all, with the same issue pending on the left coast, certainly Mag. Orenstein’s decision, fortuitously issued while the case was pending before Mag. Sheri Pym, would surely weigh heavily on the outcome.

As amici flooded in to the courthouse in support of Apple, most offering nothing more than “me too” or “Apple is so right,” under the current regime that weight of authority refers to actual heft, the government realized it had been out-maneuvered by the issuance of Mag. Orenstein’s opinion, which, unlike the “me too” briefs, offered serious and persuasive analysis.  The government hates to be out-maneuvered, so after crying in their beers after work on the day Orenstein’s decision was issued, they got back to work.

The government has now. one week to the day, moved the district court judge assigned the case to reject Mag. Orenstein’s decision.  And its 51-page memorandum of law is a masterpiece of understatement.

This is a routine application asking the Court to order a third party to assist in the execution of a search warrant. The Department of Justice has made the same application, for the same assistance, from the same company, dozens of times before. Federal courts around the nation have granted these applications. The company has complied every time. Until now.

This isn’t quite an appeal of Mag. Orenstein’s decision, but a de novo application. The government argues, no doubt in vain, that it ordinarily is, and should be, decided ex parte, but does not object to the court’s “inviting a submission from Apple, should the Court determine such a submission appropriate.” Awfully kind of the government.

After the boilerplate, the government gets to the beef of its argument, that it’s entitled to get what it wants through the All Writs Act.

There is no statute that specifically addresses the procedures for requiring any device manufacturer, such as Apple, to extract data from a passcode-locked phone.

The phraseology of this sentence is quite artful, in that it’s directed to the “procedure” for accomplishing what the government claims is its entitlement. Whether it’s entitled at all is an issue over which the government blindly leaps in the apparent hope that the judge won’t notice.

The government then seeks to distinguish the Communications Assistance for Law Enforcement Act (“CALEA”), 47 U.S.C. §§ 1001-1010 (2012), upon which Mag. Orenstein ruled against them.  The government argues that CALEA doesn’t apply to Apple and is therefore irrelevant.

CALEA does not specifically address the present dispute for several reasons. CALEA does not regulate manufacturers of consumer devices. Apple, for purposes of this dispute, is a manufacturer of a consumer device. The government is seeking Apple’s assistance because it manufactured Feng’s phone, and Apple is uniquely able to offer that assistance because it manufactured Feng’s phone.

CALEA regulates telecommunications carriers and related entities. Apple is not a telecommunications carrier. That term refers to a person or entity “engaged in the transmission or switching of wire or electronic communications as a common carrier for hire.” Id. § 1001(8)(A). It is also neither a manufacturer of “telecommunications transmission and switching equipment,” nor a provider “of telecommunications support services.” See, e.g., 47 U.S.C. §§ 1005, 1006(a). Indeed, Apple does not claim to fall within any of these definitions in this case and does not claim that it has any obligations under CALEA.

Apple is also not an “information service” for purposes of this application. While Apple notes that a “significant portion of [its] offerings are information services,” it concedes that its “role as manufacturer of the iPhone” — i.e., the role relevant to this dispute— does not fall within CALEA’s definition of information services.

The government contends that despite this, the absence of any authority under CALEA to compel Apple to write code (any code it wants, so it’s not like the government is telling it what to write, just the outcome the code must achieve) to create a backdoor that will undermine encryption security for everyone everywhere, it defaults to the All Writs Act to fill the gaps by giving government the power to get “every man’s evidence,” even if it means forcing unrelated third parties into servitude for the good of the government.

The motion goes before the district court judge in the Feng case, Judge Margo Brodie, who has spent some time at the government’s table.

Professional Career:

Assistant corporation counsel, Real Estate Ligitation [sic] Division, New York City, 1991-1994

Private practice, New York City, 1994-1999

Assistant U.S. attorney, Eastern District of New York, 1999-2012; deputy chief, general crimes, 2006-2007; chief, general crimes, 2007-2009; counselor, Criminal Division, 2009-2010; deputy chief, Criminal Division, 2010-2012

Before anyone leaps to baseless assumptions, that Judge Brodie came out of the United States Attorneys office doesn’t mean she’s necessarily inclined to side with the government. Judge John Gleeson did too, you know. And Judge Brodie is young enough to have an appreciation of the damage the government could do with its flippant argument that it’s the government, so it should get whatever it wants, no matter how much damage it causes to the universe.

But it’s not mere chance that the government got right to work after the hangover wore off. This battle is one of the national consciousness, the future of tech privacy from the hackers, other countries that might, you know, take advantage of the situation, and the government.  The fight is for the hearts and minds of those who support the government’s quest for unearthing whatever evidence strikes fear in the fragile American psyche.

Mag. Orenstein dealt a serious blow to the claim of entitlement to the All Writs Act, a residual act meant to accomplish whatever Congress forgot to authorize.  Short of CALEA expressly saying that it wasn’t an accident that Congress failed to give the government the authority to make technological privacy impossible for everyone, because it’s entitled to whatever it wants, the government will keep pursuing Apple.

Regardless of what happens before Judge Brodie, or Mag. Pym, these are just battles in a war that will determine the future of tech privacy. What this motion shows is that the government has no plans on giving up, and that they will push the envelope as far and hard as they can.  And they will not let public perception slip away.

7 thoughts on “The Government’s Next Bite of the Apple

  1. Bartleby the Scrivener

    It is truly frightening that the government is arguing that they can force a person to write code (or even wash dishes) for them simply because they want it. What is even more frightening is that they have the full support of a whole lot of people who should know better.

    1. SHG Post author

      Frightening is an operative word for all sorts of things these days. Frightened of crime, of the terrorists, of everything. We would do better to stop being so easily frightened.

  2. Paul Beard

    “The Department of Justice has made the same application, for the same assistance, from the same company, dozens of times before”

    It is my understanding that they have indeed asked for the unencrypted information for that particular phone and OS combination, multiple times. This time they are asking for the encrypted information. Apple is willing to give them the unencrypted information just like have in the past. They are not willing to un-encrypt the encrypted information.

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