James Orenstein Calls Out Jim Comey on His Prevarications about Democracy

At a 10 AM Senate Homeland Security hearing on October 8, Jim Comey read prepared testimony that reiterated his claim that encrypted devices are causing FBI problems, but stated that the Administration is not seeking legislation to do anything about it.

Unfortunately, changing forms of Internet communication and the use of encryption are posing real challenges to the FBI’s ability to fulfill its public safety and national security missions.. This real and growing gap, to which the FBI refers as “Going Dark,” is an area of continuing focus for the FBI; we believe it must be addressed given the resulting risks are grave both in both traditional criminal matters as well as in national security matters. The United States Government is actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services. However, the Administration is not seeking legislation at this time.

That statement got the Administration a lot of good press, with the WaPo declaring “Obama administration opts not to force firms to decrypt data — for now” and the NYT, even after this ruling had been unsealed, reporting, “Obama Won’t Seek Access to Encrypted User Data.” In the actual hearing, Comey was more clear that he did intend to keep asking providers for data and that the government was having “increasingly productive conversations with industry” to get them to do so, inspired in part by government claims about the ISIS threat. Part of that cooperation, per Comey, was “how can we get you to comply with a court order.”

Sometime that same day, on October 8, government lawyers submitted a request to a federal magistrate in Brooklyn to obligate Apple to help unlock a device law enforcement had been unable to unlock on their own.

In a sealed application filed on October 8, 2015, the government asks the court to issue an order pursuant to the All Writs Act, 28 U.S.C. § 1651, directing Apple, Inc. (“Apple”) to assist in the execution of a federal search warrant by disabling the security of an Apple device that the government has lawfully seized pursuant to a warrant issued by this court. Law enforcement agents have discovered the device to be locked, and have tried and failed to bypass that lock. As a result, they cannot gain access to any data stored on the device notwithstanding the authority to do so conferred by this court’s warrant.

The next day the judge, James Orenstein, deferred ruling on whether the All Writs Act is applicable in this case (though he did suggest it probably wasn’t) pending briefing from Apple on how burdensome it would find the request. Orenstein released his memo after giving the government opportunity to review his order.

This is not the first time the government has tried to use the All Writs Act to force providers (Apple, in at least one of the known cases) to help unlock a phone. EFF described two instances from last year in a December post. It also reviewed a 2005 ruling where Orenstein refused to allow the government to use All Writs Act to force telecoms to provide cell site location in real time.

Of course, as Lawfare seems to suggest, it has taken a decade for the decision Orenstein made in that earlier ruling — that the government needs a warrant to get cell tracking from a phone — to finally get fully developed into a debate and some Supreme Court (US v. Jones) and circuit rulings. That’s because in the interim, plenty of magistrates continued to compel providers to give such information to the government.

It’s quite possible the same is true here: that this is not just the third attempt to get a court to issue an All Writs Act to get Apple to provide data, but that instead, a number of magistrates who are more compliant with government wishes have agreed to do so as well. Indeed, as Orenstein noted, that’s a suggestion the government made in its application when it claimed “in other cases, courts have ordered Apple to assist in effectuating search warrants under the authority of the All Writs Act [and that] Apple has complied with such orders.”

What Orenstein did, then, was to make it clear this continues to go on, that even as Jim Comey and others were making public claims (and getting public acclaim) for not seeking legislation that would compel production of encrypted data the government — including, presumably, the FBI — was seeking court orders that would compel production secretly. The key rhetorical move in Orenstein’s order came when Orenstein compared Comey’s public statements claiming to support debate on this issue to the attempt to claim the government had to rely on the All Writs Act because no law existed. In a long footnote, Orenstein quoted from Comey’s Lawfare post,

Democracies resolve such tensions through robust debate …. It may be that, as a people, we decide the benefits here outweigh the costs and that there is no sensible, technically feasible way to optimize privacy and safety in this particular context, or that public safety folks will be able to do their job well enough in a world of universal strong encryption. Those are decisions Americans should make, but I think part of my job is [to] make sure the debate is informed by a reasonable understanding of the costs.

Then Orenstein pointed out that relying on the All Writs Act would undercut precisely the democratic debate Comey claimed to want to have.

Director Comey’s view about how such policy matters should be resolved is in tension, if not entirely at odds, with the robust application of the All Writs Act the government now advocates. Even if CALEA and the Congressional determination not to mandate “back door” access for law enforcement to encrypted devices does not foreclose reliance on the All Writs Act to grant the instant motion, using an aggressive interpretation of that statute’s scope to short-circuit public debate on this controversy seems fundamentally inconsistent with the proposition that such important policy issues should be determined in the first instance by the legislative branch after public debate – as opposed to having them decided by the judiciary in sealed, ex parte proceedings.

To be fair, even as the government was submitting its secret request to Orenstein, Comey was disavowing his former pro-democratic stance, and instead making it clear the government would try to find some other way to get orders forcing providers to comply.

But, given Orenstein’s invitation for Apple to lay out how onerous this is on it, Comey might get the democratic debate he once embraced.

Update: When I wrote this in the middle of the night I misspelled Judge Orenstein’s name. My apologies!

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

7 replies
  1. bloopie2 says:

    “To be fair, even as the government was submitting its secret request to Ornstein, Comey was disavowing his former pro-democratic stance, and instead making it clear the government would try to find some other way to get orders forcing providers to comply.”
    .
    Just proves once again that old saw about how you can tell he is lying — his lips are moving.

  2. orionATL says:

    james comey is becoming a master of exaggerated threat for political effect. further, his is the classic lawyer’s dodge of personal responsibility for the consequences of his bureaucrat’s p.r. games – “i’m only representing the interests of my client, fbi.”

    comey,in facti, is riding shotgun for ever-widening policies allowing police intrusion into private communications and personal travel.

    gather ’round children and i’ll tell you the tale, a sad tale, of the kidnapping of a young, happy, beloved, good, … child, mother, neighbor, … who went walking one day …. that sad ending need not have occurred if only the hundreds of millions of apple communications devices had been readily deprived of encryption protection – for official use only, of course.

  3. burnt says:

    Eagerly awaiting your take on the ACLU’s suit against Jessen and Mitchell on behalf of Gul Rahman’s family, et al.

  4. Giles Byles says:

    Can we discern from the Memorandum & Order who the owner of the iPhone was, or is that a secret?  Maybe I missed it.  Was it that Hatfield case mentioned in the footnotes?

    I’d also like to know why they couldn’t cajole a functioning password out of the accused.  That’s where the laser focus of  an investigation should be—not on a hardware manufacturer.  Did the suspect tell ’em he’d forgotten it, or did he just tell ’em “No, you can’t have it”?

    If FBI can’t break the encryption, tough shit.  Nobody can.  Case closed.

    That’s where all this shyte is headed, ultimately.  The encryption horses have bolted from the barn & they’re not coming back.

    • orionATL says:

      very interesting.

      so “… Did the suspect tell ’em he’d forgotten it, or did he just tell ’em “No, you can’t have it”?
      If FBI can’t break the encryption, tough shit. Nobody can. Case closed… ”

      case closed and properly so. why?

      because we have a 5th amendment to our constitution, a very early and consequential amendment, that says one can not be forced to testify against oneself. (see the unheroic judicial legacy in brittania of one sir francis bacon, who otherwise, in science rather than law, was a truly remarkable innovator).

      cannot be forced to testify against oneself = cannot be tortured

      even if gov tortures under the aegeis of mitchell’s and jessen’s clevef suggestion of using “learned helplessness” as a protective rhetorical device.

      but we are not talking rhetorical devices here, we are talking physical, electronic devices.

      so what is the connection between the cheney-to-comey legal position on citizen communication thru electronic devices and

      legal rhetorical devices?

      only this.

      comey-obama and their progenitors, mueller -cheney, are seeking a legal, judicial way around the fifth amendment.

      yes. you read it right.

      electronic spying is an end-around on the constitution’s fifth amendment.

      all that expansion of nsa domestic saying under capt kirk alexander, supported by the bush-obama administrations, was for the specific purpose of negating a prohibition against incriminating oneself.

      swert, no?

      how to read that very early fifth amendment

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