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Apple Wins New York Case

  • March 4, 2016
  • Clayton Rice, Q.C.

In my posts titled Apple And The ‘All Writs Act’ dated November 2, 2015, and Apple and ‘Assistance Orders’ in Canada dated November 8, 2015, I discussed an application before Magistrate Judge James Orenstein of the United States District Court, Eastern District of New York, in In Re Order Requiring Apple, Inc. To Assist In The Execution Of A Search Warrant Issued By This Court, 15 Misc. 1902-JO (2015). The government had brought an application for an order under the All Writs Act 28 USC s 1651 directing Apple, Inc. (“Apple”) to assist in the execution of a federal search warrant by defeating the security of an iPhone that was seized in a drug investigation pursuant to a warrant issued by the court. That case has been running ahead of the San Bernardino case I discussed in my last post titled Apple v. FBI: The Court Record So Far dated February 26, 2016.

On February 29, 2016, Judge Orenstein denied the government’s motion. It is an important ruling that will bear upon the San Bernardino application pending before Magistrate Judge Sheri Pym in the District Court for the Central District of California. The case law compelled Judge Orenstein to consider three factors in deciding whether an order should issue: (a) the closeness of Apple’s relationship to the underlying criminal conduct and government investigation; (b) the burden the requested order would impose on Apple; and, (c) the necessity of imposing such a burden. Judge Orenstein concluded, at p. 1 of the Memorandum and Order, that none of the factors justified imposing on Apple, “…an obligation to assist the government’s investigation against its will.”

Let’s begin, then, with the text.

The text of the statute, dating back to 1789, confers on all federal courts in the United States the authority to issue orders where three requirements are satisfied: (1) issuance of the writ must be “in aid of” the issuing court’s jurisdiction; (2) the type of writ requested must be “necessary or appropriate” to provide such aid to the issuing court’s jurisdiction; and, (3) the issuance of the writ must be “agreeable to the usages and principles of law.” If an application meets all three requirements, a court may issue a writ but it is not required to.

On whether to take discretionary action, three additional factors came into play: (1) the closeness of the relationship between the person or entity to whom the proposed writ is directed and the matter over which the court has jurisdiction; (2) the reasonableness of the burden to be imposed on the writ’s subject; and, (3) the necessity of the requested writ to aid the court’s jurisdiction.

Judge Orenstein concluded that the government’s motion should be denied as both a matter of law and one of discretion, at pp. 11-2: “…I conclude that in the circumstances of this case, the government’s application does not fully satisfy the statute’s threshold requirements: although the government easily satisfies the statute’s first two elements, 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. Moreover, I further conclude that even if the statute does apply, all three discretionary factors weigh against issuance of the requested writ, and that the Application should therefore be denied as a matter of discretion even if it is available as a matter of law.”

I will therefore focus on two aspects of the ruling: (a) the separation of powers doctrine; and, (b) the question of “burdensomeness”.

Critical to Apple’s position in this case, and in the San Bernardino case, is the tactic of law enforcement not just to obtain evidence in one or both of these cases, but to gain a judicial precedent granting the government authority to force Apple, and by extension other companies, to take technological steps to cooperate in criminal investigations. Judge Orenstein said this, at p. 28:

“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, see Tr. at 8; 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 thus clear that the government is relying on the AWA as a source of authority that is legislative in every meaningful way: something that can be cited as a basis for getting the relief it seeks in case after case without any need for adjudication of the particular circumstances of an individual case (as the arguments that the government relies on here to justify entering an AWA order against Apple would apply with equal force to any instance in which it cannot bypass the passcode security of an Apple device it has a warrant to search).”

Judge Orenstein went on to condemn the use of ex parte judicial proceedings by the government to secure powers denied to it by Congress, at p. 29: “…[T]he 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’s interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction thus raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine. It would attribute to the First Congress an anomalous diminishment of its own authority (to deny a request to increase the executive’s investigative powers it deemed inadvisable simply by declining to enact it) as well as an equally implausible intention to confer essentially unlimited legislative powers on the judiciary.”

On the question of “burdensomeness”, Judge Orenstein emphasized, at p. 39, that bypassing a security measure that Apple markets to its customers is not something that Apple would normally do and is plainly “offensive to it”. Although there has been a change in Apple’s privacy policy since the days when it cooperated with AWA orders, there is no reason to “question its sincerity” regarding its present position. Judge Orenstein made this observation in footnote 34, at p. 39:

“In considering the burden the requested relief would impose on Apple, it is entirely appropriate to take into account the extent to which the compromise of privacy and data security that Apple promises its customers affects not only its financial bottom line, but also its decisions about the kind of corporation it aspires to be. The fact that the government or a judge might disapprove Apple’s preference to safeguard data security and customer privacy over the stated needs of a law enforcement agency is of no moment: in the absence of any other legal constraint, that choice is Apple’s to make, and I must take into account the fact that an order compelling Apple to abandon that choice would impose a cognizable burden on the corporation that is wholly distinct from any direct or indirect financial cost of compliance.” (See also: Katie Benner. Apple Wins Ruling in New York iPhone Hacking Order. The New York Times. February 29, 2016; and, Ellen Nakashima. Judge rules in favour of Apple in key case involving a locked iPhone. The Washington Post. February 29, 2016)

Judge Orenstein concluded with an eloquent plea for urgent action by the law makers, at pp. 48-9:

“In deciding this motion, I offer no opinion as to whether, in the circumstances of this case or others, the government’s legitimate interest in ensuring that no door is too strong to resist lawful entry should prevail against the equally legitimate societal interests arrayed against it here. Those competing values extend beyond the individual’s interest in vindicating reasonable expectations of privacy – which is not directly implicated where, as here, it must give way to the mandate of a lawful warrant. They include the commercial interest in conducting a lawful business as its owners deem most productive, free of potentially harmful government intrusion; and the far more fundamental and universal interest – important to individuals as a matter of safety, to businesses as a matter of competitive fairness, and to society as a whole as a matter of national security – in shielding sensitive electronically stored data from the myriad harms, great and small, that unauthorized access and misuse can cause.

How best to balance those interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive. It would betray our constitutional heritage and our people’s claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789.”

The next day, March 1, 2016, Apple’s general counsel, Bruce Sewell, and FBI Director James Comey, appeared before the US House Judiciary Committee. Mr. Comey was reported as telling the panel that a final court ruling forcing Apple to break the security feature of Syed Rizwan Farook’s work iPhone, seized in the San Bernardino investigation, would be “potentially precedential” in other cases. This was a clear change in Mr. Comey’s position of the previous week that ordering Apple to unlock the iPhone was “unlikely to be a trailblazer” in setting a precedent for other cases. Mr. Comey’s comment prompted a frosty response from Michigan Representative John Conyers who asked rhetorically: “Given…that Congress has explicitly denied you that authority so far, can you appreciate our frustration that this case appears to be little more than an end around this committee?” (See: Julia Harte and Julia Edwards. Apple lawyer, FBI director face off in Congress on iPhone encryption. Reuters. March 2, 2016)

On March 3, 2016, the Electronic Frontier Foundation filed an amici curiae brief in support of Apple in the San Bernardino case signed by 46 technologists, security researchers and cryptographers. The brief focuses mainly on one of the constitutional issues asserting that writing and signing code is speech protected by the First Amendment, at pp. 12-3:

“This case involves technological communication in ways that many speech cases do not. But the form of communication does not alter the fundamental First Amendment principles at stake. The values that underlie the compelled speech doctrine – freedom of thought and integrity in one’s beliefs – are as fundamental here as in any other context. If Apple were required to declare verbal support for the government’s belief that technological backdoors or other forms of mandatory access by the government are necessary, such as in a blog post or public testimony, it would be easy to spot the First Amendment violation. That Apple communicates in the language of computer code and Apple’s signature verifying that code, rather than spoken words, in a parade, on a t-shirt or a license plate, does not make the prohibition on compelled speech any less applicable.

It is long settled that computer code, including the code that makes up Apple’s iOS operating system and its security features including encryption, is a form of protected speech under the First Amendment. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 449 (2d Cir. 2001); Junger v. Daley, 209 F.3d 481, 484 (6th Cir. 2000); Bernstein v. DOJ, 176 F.3d 1132, 1146 (9th Cir. 1999), vacated on other grounds, 192 F.3d 1308 (9th Cir. 1999). Code consistently receives First Amendment protection because code, like a written musical score, ‘is an expressive means for the exchange of information and ideas.’ Junger, 209 F.3d at 484.” (See also: Nick Wingfield and Katie Benner. Apple Is Rolling Up Backers in iPhone Privacy Fight Against F.B.I. The New York Times. March 3, 2016)

Apple’s Motion to Vacate in the San Bernardino case is scheduled for hearing on March 22, 2016.

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