I don’t normally comment on headlines themselves, but Philip Elmer-DeWitt’s latest one related to Apple’s ongoing battles with the Federal Bureau of Investigation had me cheering, laughing, and nodding in agreement at the same time. “The FBI’s Case Against Apple Got Kneecapped in Brooklyn” is the headline, and it discusses a drug dealer case in New York rather than the terrorist’s iPhone in San Bernadino. Still, United States Magistrate Judge James Orenstein clearly has bigger issues in mind than unlocking a drug dealer’s iPhone in Brooklyn.
The ruling Orenstein handed down is 50 pages long, and Elmer-DeWitt points out that it reads like a Supreme Court brief. Judge Orenstein’s ruling denies, unequivocably, the Department of Justice’s use of the 1789 All Writs Act to force Apple into breaking open the San Bernadino iPhone.
In his ruling, Orenstein uses the word “tyranny” once and “absurd” nine times, ultimately accusing the Department of Justice of trying to use the authority behind the All Writs Act to get from the courts what the department has thus far been unable to attain through Congress.
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.
Orenstein also refers to the authority sought by the government as “obnoxious to the law,” which I believe is straight on point. The FBI is stretching, here, and it’s good to see a federal judge recognizing that. The discussion should be taking place in Congress, not in the courts.
That is precisely the Congressional debate that Apple is hoping to spark today, March 1, as general counsel Bruce Sewell testifies before the body in a hearing called “The Encryption Tightrope: Balancing Americans’ Security and Privacy.”