Here’s the latest in the encryption case we’ve been writing about in which the Justice Department is asking Magistrate Judge James Orenstein to order Apple to unlock a criminal defendant’s passcode-protected iPhone. The government seized and has authority to search the phone pursuant to a search warrant. Rather than promptly grant the request (as other magistrates have done), Judge Orenstein expressed doubt that the law the government is relying on, the All Writs Act of 1789 (AWA), in fact authorizes him to enter such an order. After receiving briefing from Apple and the DOJ, Judge Orensteinheard oral arguments from both sides on Monday. He then invited them to submit additional briefing to address issues raised during the hearing.
On Wednesday, Apple and the government each submitted a brief. Their filings analyzed prior cases involving when and whether private actors who are not parties to a case can be subjected to orders compelling them to assist law enforcement. Apple argued that none of the cases discussed at the hearing support “the notion that a non-party can be conscripted into providing services for the government.” By contrast, the DOJ stated that “there is … no impropriety in requiring civilian assistance [to law enforcement] under the All Writs Act.” It said that the AWA is so expansive in scope that a court can impose an order on anyone over whom it has properly exercised jurisdiction, and that Apple satisfies that standard here because it made and provided the iPhone, iOS software, and related services to the defendant.
The parties’ briefs also discussed whether Apple qualifies as an “information services provider” under a federal law called the Communications Assistance for Law Enforcement Act, more commonly known as CALEA. This matters because CALEA requires telecommunications carriers — but explicitly exempts information services providers — from having to build “backdoors” for law enforcement access into their equipment. (“Information services” allow customers to create, store, and retrieve information via telecommunications, including things like instant messaging services and cloud storage providers.) Judge Orenstein previously suggested that CALEA would effectively preclude an unlocking order to Apple under the AWA. That’s because the AWA operates as a “gap-filling” statute that comes into play only where no other statute applies. Judge Orenstein’s earlier order reasoned that CALEA applies, and the AWA cannot force Apple to give the government access to the defendant’s iPhone if Congress didn’t say so in CALEA.
Read the full post at Just Security.