James Orenstein’s Order Sets Up Congressional Hearing

As Rayne noted this morning, yesterday James Orenstein released his order stating that the government can’t use the All Writs Act to force Apple to unlock the phone of a meth dealer, Jun Feng, who has already pled guilty. My favorite part of the order comes in the middle where he argues that those who passed the All Writs Act in 1789 were substantially the same people who wrote the Constitution guaranteeing Congress the right to legislate. He argued it would be unlikely that those same men would so quickly hand off that authority to the courts.

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[.]” U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow.

I’m sad that that argument, which is probably the first in a series of court rulings that will end up at SCOTUS, won’t have Scalia there to enjoy it.

Ultimately, though, Orenstein makes the very same argument he made back in October when he asked Apple to weigh in on this issue, updated with the point that I made — the same day the government asked for this order Jim Comey told Congress they don’t need legislation to get the same 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 thetime it filed the instant Application, shielded from public scrutiny) rather than taking the chance thatopen legislative debate might produce a result less to its liking. Indeed, on the very same day that thegovernment filed the ex parte Application in this case (as well as a similar application in the SouthernDistrict of New York, see DE 27 at 2), it made a public announcement that after months of discussionabout the need to update CALEA to provide the kind of authority it seeks here, it would not seek suchlegislation. See James B. Comey, “Statement Before the Senate Committee on Homeland Security andGovernmental Affairs,” (Oct. 8, 2015), https://www.fbi.gov/news/testimony/threats-to-the-homeland (“The United States government is actively engaged with private companies to ensure theyunderstand the public safety and national security risks that result from malicious actors’ use of theirencrypted products and services. However, the administration is not seeking legislation at this time.”).

Whether because it knew it would lose (and had lost), or because it wanted to pretend it respected encryption when in fact it did not, the Obama Administration adopted a strategy by which it told Congress it didn’t need new legislation, all while asking the courts to rewrite CALEA in secret.

Whether accidentally or not (I suspect it is no accident), Orenstein’s order comes at a particularly useful time, hours before the House Judiciary Committee will have what will be one of the more important hearings on this debate, featuring Jim Comey first, and then NY District Attorney Cy Vance, Apple’s General Counsel Bruce Sewell, and rock star academic Susan Landau. It is likely to be the one hearing to which Apple will willingly provide a witness, and the committee is made up of a mix of former US Attorneys, shills for law enforcement, but also defenders of privacy and online security.

In his testimony for the hearing, Sewell said much the same thing Orenstein did:

The American people deserve an honest conversation around the important questions stemming from the FBI’s current demand:

Do we want to put a limit on the technology that protects our data, and therefore our privacy and our safety, in the face of increasingly sophisticated cyber attacks? Should the FBI be allowed to stop Apple, or any company, from offering the American people the safest and most secure product it can make?

Should the FBI have the right to compel a company to produce a product it doesn’t already make, to the FBI’s exact specifications and for the FBI’s use?

We believe that each of these questions deserves a healthy discussion, and any decision should be made after a thoughtful and honest consideration of the facts.

Most importantly, the decisions should be made by you and your colleagues as representatives of the people, rather than through a warrant request based on a 220 year old-statute.

For years, the government has stopped short of demanding legislation, presumably because they knew they wouldn’t get what they wanted. They’re finally being called on it.

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.

9 replies
  1. bloopie2 says:

    The fears about slippery slope are correct. Many countries are already worse than the US on government relations with companies like Apple; do we want to put the US into that category? Witness this, in Brazil:
    .
    Police in São Paulo say they have arrested the vice-president of Facebook in Latin America. In a statement released on Tuesday, the police said that Diego Dzodan, an Argentinian, was arrested on an order from a judge in the north-eastern state of Sergipe. Dzodan is accused of ignoring a judicial order in a secret investigation involving organized crime and drug trafficking. A Brazilian judge in December blocked the popular WhatsApp messaging service owned by Facebook because it refused to give user information to police.

  2. Bitter Angry Drunk says:

    Not completely on topic, but I can’t be the only who thinks that the FBI knew what they were doing when they told the San Bernardino government to reset the password on Farook’s phone. I mean, if they could have backed it up, they wouldn’t have been make a federal case out of this? Right? Right?

    • Denis says:

      Right, BAD.
      .
      The Apple brief repeatedly refers to the password reset as “inadvertent.” Like you, I don’t buy it. FBI has at least a dozen of these AWA cases going v. Apl. They know exactly what they’re doing.

  3. SpaceLifeForm says:

    Memo to Department of Injustice:

    Judge shopping is tricky. And they are waking up to your tricks.
    Maybe it would be better to follow the Constitution and the Law.

  4. jo6pac says:

    What ever the cia and other 3 letter govt will show to the so-called Amerikas govt. elected employs doesn’t matter. This is new Amerika.

    Everything is on schedule, please move a long

  5. Denis says:

    I’ve spent the day parsing out Magistrate Judge James Orenstein’s Memorandum Opinion. It is, in a sense, Chapter 2 following on from his Memo/Opinion of Oct09|2015, which MW covered on Oct13|2015.
    .
    I highly recommend wading through yesterday’s Opinion, especially if you’re like me and are suffering chronic post-9/11 depression over the direction the USG is going. Orenstein is one of those in the judiciary who obviously gets it. I love this guy. His opinion is a most remarkable statement about how the USG is over-reaching in this All Writs Act bullshit, but, like a gentleman, he gets that point across without once using the term “bullshit.” Don’t know how he does it.
    .
    To my mind he raises the most important point right at the end when he notes that these AWA cases v. Apple are not about public safety vs. privacy, which was the way Comey laid these cases out in his Feb21 online spiel. They are about (in Orenstein’s words) the government attacking Apple’s “commercial interest in conducting a lawful business as its owners deem most productive, free of potentially harmful government intrusion.” But his concerns are a lot broader than just the USG screwing with Apple’s business plan and brand.
    .
    Hopefully, MJ Sheri Pym, riding herd on the SB shooters case in Riverside, CA, will learn something from the way Orenstein has conducted his analogous case. But I ain’t holdin’ my breath.
    .
    When DoJ went to Orenstein with an ex parte (meaning the other side isn’t involved or noticed) application for the AWA writ, Orenstein told DoJ to get lost with that ex parte crap. He refused to issue the writ and he immediately brought Apple into the discussion. But when DoJ went to Pym with precisely the same sort of ex parte application, Pym wrote out the order against Apple the very same day – no notice to Apple, no chance for Apple to put up their side of the argument before the order was issued. It was a rubber stamp, and in juxtaposition to Orenstein’s concerns about Apple’s right to be heard, it was shameful. We don’t know yet how Pym is going to handle her version of Comey’s AWA fuster-cluck and it’s not fair to pre-judge her fairness, but so far she’s a little scary.
    .
    Both of these MJ’s were Asst. US Atty’s in the same districts where they now sit on the bench. Both of them know “how the game is played.” Orenstein would have served a couple years (1999-2001) as Asst US Atty under Loretta Lynch. I hope what I’m reading in yesterday’s opinion reflects the attitude of his former boss. Judging from his opinion, he is absolutely bomb-proof.
    .
    His ruling will now be reviewed by a “real” USDC judge in EDNY, and he could get reversed. Even if he is, he’s on the public record as being on the right side of this AWA bullshit, which, as I say, is not what he called it. That’s me paraphrasing.

  6. Rapaport says:

    don’t worry we are mearly proxies for the FBI, NSA, CIA none of use have ever done anything bad or murdered democratic leaders, activists or colaberatade with Nazi’s cause we are paragons if truth, justice and the american way… which is primarily murder, extortion, murder, murder did I mention murder also there was murder and yah i’m gonna go with murder and murder also murder, I can’t actually list all the murder.

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