In October 2015, well before the current conflict between the FBI and Apple erupted over the San Bernardino shooter's iPhone, the government asked federal Magistrate Judge James Orenstein in the Eastern District of New York to order Apple to assist in unlocking an iPhone belonging to a drug dealer. Judge Orenstein, however, refused to issue the order without first hearing from Apple. (I mentioned this New York case in my column last week in which I discussed the legal aspects of Apple's objections to the order in the San Bernardino case.)

On Monday, after hearing from both Apple and the government, Judge Orenstein issued a 50-page order in which he comprehensively rejected the government's request. In fact, at one point in his ruling he stated quite bluntly that the government's argument "reflects poorly on a government that exists in part to safeguard the freedom of its citizens."

For a legal analysis of Judge Orenstein's order, and its potential impact on the Apple vs FBI case permeating the news this past week, I once again turned to attorneys Fernando Pinguelo and Mason Barney, who explained to me the following:

Judge Orenstein's order essentially states that he was prohibited both by statute and by the Constitution from issuing the order that the government requested. Furthermore, the judge noted that even if he did not believe that he was prohibited from issuing the order, he will still not have issued it, as he believed that the government's request would impose an unreasonable burden on Apple, something that would negate the power of the All Writs Act which the government relied upon in its request, and which I discussed in last's week's article.

Judge Orenstein stated that the All Writs Act is a "gap filler" statute - meaning that it cannot be applied when another law either authorizes, or prohibits, the court from acting in some particular fashion.  He held that a federal statute known as the Communications Assistance for Law Enforcement Act (CALEA) exempted Apple from having to provide the type of assistance that the government sought.  CALEA requires telecommunications companies to allow the government to wiretap communications, but, according to the judge, Apple falls into an exemption in the law made specifically for "information services" companies.  Judge Orenstein then noted that Congress has on several occasions (even as recently as last year) considered amending CALEA to include companies like Apple, but, each time it thought about making the change it has declined to do so.  Faced with such Congressional inaction, the judge ruled that issuing the requested order would improperly usurp Congress' Constitutional authority to make - or not to make - laws.

Judge Orenstein also stated that the government's request met none of the following factors established by the Supreme Court for when an order would be appropriate under the All Writs Act:

1. The targeted company cannot be "so far removed from the underlying controversy."

2. The order cannot not place "unreasonable burdens" on the targeted company.


3. The company's involvement must be "essential to the fulfillment of the purpose ... for which ... [the] order had been issued.

Under the first factor, Judge Orenstein disagreed with the government's argument that, because Apple sold the iPhone and encryption software, Apple was not too "far removed" from the underlying crimes.  Apple's sale of the encryption software and the iPhone was not sufficient to create the necessary connection between Apple and the underlying crime.  It was the drug dealer who owned the iPhone and chose to put a password on his phone., not Apple. Moreover, according to the judge, Apple's refusal to provide assistance could not be taken to mean Apple that hindered the investigation.

Judge Orenstein also found that the government's requested order placed a number of "unreasonable burdens" on Apple.  Unlocking an iPhone "is not something that Apple would normally do in the conduct of its own business," and, thus, ordering it to do so would place a burden on the company.  Importantly, the burden cannot be measured simply by calculating the cost to Apple to unlock the single relevant iPhone. Because the government made least 70 prior similar requests (with 12 still pending), the judge noted, the cost to Apple is the cumulative effect of all of these requests.

Judge Orenstein next expressed serious concern about the burden placed on Apple by impinging on Apple's belief in the value of encryption.  He described how the Supreme Court stressed in a prior case that a valid All Writs Act order did not pose a "threat to the autonomy of third parties who for whatever reason prefer not to render... assistance." In the case addressed then by the court, the company in question had no objection to allowing the government to install a mechanism to track what phone numbers were being dialed.  By contrast, in Apple's case Apple has stated clearly that it believes that companies should not render to the government the type of assistance that the government wants.  To order Apple to go against its own belief, the judge ruled, would place an unreasonable burden on the company.  In his words, to hold otherwise would allow the All Writs Act to "confer on the judiciary an overbroad authority to override individual autonomy." 

Interestingly, Judge Orenstein also stated that he believed that Apple's assistance was not strictly essential, as there is evidence that the government already possesses the ability to unlock an iPhone; this claim may be surprising to many observers of recent news reports.

Judge Orenstein's ruling may be the first time a judge has ruled against a request by the United States government's to unlock an iPhone. As I noted last week, the fact that we are debating the applicability of a law from the 18th century to address 21st century technology that would not have even been imaginable even as science fiction when the laws were crafted means that Congress truly needs to create new statutes applicable for the modern era. Yesterday, the House Judiciary Committee held hearings during which it heard from both Apple and the FBI. The Chairman of the committee stated that "Congress is best-suited to resolve" issues surrounding data encryption and national security and that the San Bernardino case "may not be an ideal case upon which to set precedent" due to its "unique" circumstances. I agree.