U.S. Magistrate Judge James Orenstein ruled that the FBI’s use of the 1789 All Writs Act (AWA) was a vast overreach by the government, and one that is likely unconstitutional. In the 50-page ruling, Orenstein writes:
The extraordinary relief it seeks cannot be considered "agreeable to the usages and principles of law." In arguing to the contrary, the government posits a reading of the latter phrase so expansive – and in particular, in such tension with the doctrine of separation of powers – as to cast doubt on the AWA's constitutionality if adopted.
Orenstein goes on to admonish the government for fishing through the court system to obtain a reasonable result:
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.
Rather than fishing with a stick of dynamite, it appears that the FBI might as well have cast its line out into the water without any bait attached at all, as Orenstein lays it on even thicker. He practically railroads the FBI for navigating around Congress during its own efforts to bypass iPhone security protocols:
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 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.
The device in question in the NY case is an iPhone 5s that belongs to suspected drug trafficker Jun Feng. The Drug Enforcement Agency (DEA) seized the iPhone in June 2014, though it didn’t attempt to unlock the device until July 2015 after acting upon a search warrant. The DEA was unable to bypass the passcode protection, so it called in to the FBI for assistance.
iPhone 5s [Photos by Kārlis Dambrāns/flickr]
As you can probably guess by now, the FBI was also unsuccessful in its efforts to bypass the passcode, so it reached out to Apple for direct assistance. Apple offered to provide assistance in obtaining the information that it readily had access to, but stopped short of breaking its own security defenses to appease the government — sound familiar?
Not content with the response, the FBI tried to use the AWA to compel Apple to unlock the devices, hence the legal battle. The mechanics surround the case and the use of the AWA puts the NY case on similar legal ground to the case in San Bernardino. But it remains to be seen how much leverage Apple can muster with this ruling when it throws down with the U.S. Government on March 22nd.