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[UPDATED] Magistrate Judge Orenstein’s order in the EDNY, denying DOJ’s All Writs Act request . . .

. . . is here. The order that the government requested the judge to issue would have required Apple to bypass the passcode security on an iPhone 5s (which used Apple’s iOS 7 for its operating system), in order to assist the government in its execution of a search warrant previously issued by the court.

UPDATED (as of March 1): The following reactions are tentative, based upon preliminary readings of the opinion and a bit of case law; I welcome additional views of my fellow bloggers and Just Security readers. I also highly recommend Bobby Chesney’s very helpful primer on the opinion, which fills out some of the points that I allude to here only in passing.

It’s important to emphasize that Judge Orenstein offers three (or four) reasons why the court cannot issue the order, and yet other reasons why he would decline to do so even if that were a legally available option for him.

Judge Orenstein reasons that he cannot issue the order for the following reasons:

1. In enacting CALEA and other statutes, Congress has in effect prohibited issuance of an order such as the one the government has requested here (pp. 18-21). The notion that Congress might implicitly impose a restriction on judges’ All Writs Act authority merely by enacting a statute that confers many other, analogous authorities (and obligations), but that does not itself confirm the authority in question, might appear somewhat odd, or discordant, in this day and age, when it is widely assumed that Congress does not act by “inaction.” In fact, however, Judge Orenstein’s logic here is very similar to the reasoning of Justices Frankfurter and Jackson in the Youngstown “steel seizure” case, in which they concluded that Congress’s highly reticulated scheme for resolving labor disputes had, in effect, denied the President tools not included in that scheme, even in the absence of an express prohibition. [UPDATE: Moreover, in its brief, the government acknowledged that “courts are confined [under the AWA] when Congress has passed an express prohibition of the requested authority or one can be reasonably inferred from a comprehensive statutory scheme” (citing, inter alia, In re Application of the United States for an Order Authorizing the Use of a Pen Register, 396 F. Supp. 2d 294, 326 (E.D.N.Y. 2005) (precluding All Writs Act authority to order an action that was “omitted from a far-reaching and detailed statutory scheme that has received the legislature’s intensive and repeated consideration”)). Whether a limitation on these sorts of orders to Apple can “be reasonably inferred” from Congress’s “comprehensive statutory scheme,” including CALEA, will likely be the most important legal question going forward, in this and other, similar cases.  To be clear:  I do not know enough about CALEA to offer an informed judgment about whether Judge Orenstein’s argument here is solid or not–and the government has not yet briefed the issue in any detail, as far as I know.  I’m just saying that this will likely be the focus of the debate in the courts, going forward, and that Judge Orenstein’s account appears to be stronger than the one Apple has recently offered in its brief in the San Bernardino case.]

2. Because Congress specifically chose not to impose such obligations on companies such as Apple when it enacted CALEA and related statutes, and because it “considered and rejected” the idea of imposing such obligations when other proposals were put before it, Judge Orenstein reasons that an order here, even if not precluded by CALEA, would not be “agreeable to the usages and principles of law,” as the All Writs Act requires (pp. 21-26; see also p. 30 & n.25). [UPDATE to my UPDATE: This part of Judge Orenstein’s argument depends upon his conclusion that the AWA’s requirement that orders be “agreeable to the usages and principles of law” must be more restrictive than if the AWA had merely provided that orders must be “agreeable to the law,” with no reference to the “principles of law.” He is correct that the phrase means something more than simply “not legally prohibited.” Judge Orenstein does not, however, adequately contend with the way the Supreme Court has construed that phrase in the AWA — which is to restrict the forms and modes the court may use under the AWA to those modes of process “already prepared and in use in the respective States” as of 1789. See Riggs v. Johnson, 73 U.S. 166, 190-91 (1867):

Forms of process, mesne and final, and the modes of process varied in essential particulars from the principles and usages of the common law, and in many cases they were different in the different States. Intention of Congress, in passing the Process Acts, was, that the forms of writs and executions, and the modes of process, and proceedings in common law suits, in the several Circuit Courts, should be the same as they were at that time in the courts of the respective States. Instead of framing the forms of process, and prescribing the modes of process, Congress adopted those already prepared and in use in the respective States, not as State regulations, but as the rules and regulations prescribed by Congress for use in the several Circuit Courts. Adopted as they were, by an act of Congress, they became the permanent forms and modes of proceeding, and continue in force wholly unaffected by any subsequent State legislation. Alterations can only be made by Congress, or by the Federal courts, acting under the authority of an act of Congress.

(Thanks to Orin Kerr for pointing me to Riggs.) On this understanding, the AWA phrase “agreeable to the usages and principles of law” simply has nothing to do with whether the writ in question is consonant with legislative proposals that recent Congresses have considered and not enacted. If this is correct, then this second argument of Judge Orenstein’s is probably as suspect as the third, below.]

3. Reading he AWA to permit this sort of order would raise serious constitutional questions, because it would be a constitutionally dubious delegation to the judiciary to impose authority that is effectively “legislative” (pp. 26-31).

4. Judge Orenstein also holds, in the course of applying the New York Telephone considerations respecting an order under the All Writs Act, that the burdens on Apple would be “unreasonable,” including because the reputational harm to Apple would have a serious impact on its bottom line (pp. 38-45). Because the Court in New York Telephone held that “the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed,” this finding of unreasonableness, if upheld, would be yet another basis why the order would not be permissible under the AWA.

* * *

 
Alternatively, at pages 31-48 of his opinion, Judge Orenstein explains why he thinks each of the N.Y. Telephone factors cuts in Apple’s favor (including that the government had failed to establish that the help it seeks from Apple is necessary for it to be able to obtain information from the phone in question), and thus why he would decline to issue the order even if it the AWA authorized him to do so, and if CALEA and other statutes did not prohibit it.

I would have to study the law, and the parties’ submissions, much more carefully in order to opine with any degree of confidence on whether Judge Orenstein’s opinion will survive appellate review, and/or whether other judges are likely to follow his example. Suffice it to say that at least the first part of his opinion — dealing with the preclusive effect of CALEA — is more formidable than Apple’s own recent filing in the San Bernardino case. (Arguments Nos. 2 and 3 — concerning the meaning of “agreeable to the usages and principles of law” (Argument 2) and discussing purported serious constitutional questions that would be raised if the AWA were construed to permit this order (Argument 3) — are much weaker parts of the analysis, IMHO; and the constitutional avoidance argument, in particular, is in considerable tension with Judge Orenstein’s ultimate view that Congress is the proper body to decide whether to impose a categorical obligation on Apple and other companies to issue assistance of this type.)

Because the government would have to prevail on each of the separate grounds Judge Orenstein invokes in order to ultimately prevail on appeal — a possible, but by no means certain, outcome — this opinion might spur the executive branch to make more aggressive efforts to seek a legislative solution, rather than to continue to depend upon making a series of applications to judges for AWA orders. Of course, if the appellate courts reverse Judge Orenstein’s order — if they hold, in particular, that CALEA does not preclude orders such as these, and that the burdens on Apple would not be “unreasonable” — then the government would have much less of a need for a statutory amendment.

Editor’s note: This piece was originally published on February 29, 2016 at 6:48pm, and was subsequently updated on February 29, 2016 at 1035pm and on March 1, 2016 at 7:11am.

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About the Author

is a professor at the Georgetown University Law Center. You can follow him on Twitter (@marty_lederman).