Apple continues to fight the FBI over a request to create a bypass mechanism for iOS to let the government access the local contents of a dead terrorist's iPhone. But the same legal justification - a 1789 law called the All Writs Act - has been used by the federal government in more than 70 cases to force Apple to decrypt iPhones used by alleged criminals.
Today, James Orenstein, a federal judge in Brooklyn, N.Y., said the government's position was dead wrong. The very strongly worded ruling said the government's assertions were deeply unconstitutional, their results would be "absurd," and they give the courts the ability to impose anything that Congress did not explicitly prevent.
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....
The government's position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law -- which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it -- would transform the AWA [All Writs Act] from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress's superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction. ...
It is wholly implausible to suppose that with so many of the newly adopted Constitution's drafters and ratifiers in the legislature, the first Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States."
The ruling is a significant one because it examines in depth the applicability of the All Writs Act, which gave the courts the ability to require people in some cases to comply with requests for information. The All Writs Act is the law that the FBI, federal prosecutors, and other government agencies use to try to force companies like Apple to actively aid their investigations by unlocking devices protected via passwords and encryption.
After getting more than 80 such requests citing the All Writs Act, Apple asked the judge to "clarify" when and where the All Writs Act could be used to compel it to help. In his ruling, Judge Orenstein goes through all the government arguments and demolishes them one by one - and explains why they apply far beyond the specific case he has been handling. Orenstein wrote:
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 also 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.
The government can compel companies to turn over data they have, Orenstein wrote -- which Apple has done every time it's been given a court order, he noted -- but it can't force private companies to work on behalf of the government or against their self-interests. In Apple's case, that would be destroying Apple's ability to protect customer information held by those customers.
Orenstein noted that Apple declined to help federal agencies bypass its own systems' security, which is perfectly legal. He disagreed with the government's characterization that declining to help equated with "thwarting" the government.
Apple is not "thwarting" anything -- it is instead merely declining to offer assistance. There may well be some for whom the distinction between a third-party's active obstruction of law enforcement and its passive refusal to help is meaningless as a matter of policy. But it is hardly meaningless as a matter of legal analysis.
Ironically, around the time Orenstein issued his ruling, New York's top prosecutor warned Congress that Apple's refusal to help the government unlock its devices "frustrates the ability of law enforcement to prevent, investigate, and prosecute criminals" -- one of the arguments Orenstein rejected.
Apple is expected to testify before Congress tomorrow about its stand against breaking into users' devices on behalf of government agencies. Apple has the support of Google and Microsoft -- who also offer customers encryption technology -- as well as many other technology firms. And now it has the support of a federal judge.
Join the CIO Australia group on LinkedIn. The group is open to CIOs, IT Directors, COOs, CTOs and senior IT managers.