Posted Mar 01, 2016 09:44 am CST
The All Writs Act does not give judges power to order Apple to assist the government in opening an iPhone, a federal magistrate judge has ruled in a New York drug case.
Orenstein said the government’s interpretation of judicial power under the law is “so expansive—and in particular, in such tension with the doctrine of separation of powers—as to cast doubt on the AWA’s constitutionality if adopted.”
The assistance sought by the government in the New York case is less burdensome than in the high-profile San Bernardino case, where the government is asking Apple to create new software to allow access to the phone of a terrorist who killed 14 people. In the New York case, the government wants Apple to disable a security lock on an iPhone 5s using an iOS7 operating system.
The All Writs Act of 1789 says courts may issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The law acts as a “gap filler” when Congress has failed to anticipate every circumstance in which federal courts may act to vindicate the rights of parties, according to Orenstein
But the law doesn’t allow the courts to act in this case because Congress considered requiring private companies to provide the type of assistance sought by the government but declined to do so when it adopted the Communications Assistance for Law Enforcement Act in 1994, Orenstein said.
“In short, whatever else the AWA’s ‘usages and principles’ clause may be intended to accomplish,” Orenstein wrote, “it cannot be a means for the executive branch to achieve a legislative goal that Congress has considered and rejected.”
The Justice Department said in a statement on Monday that it will ask a judge to review Orenstein’s decision. “As our prior court filings make clear, Apple expressly agreed to assist the government in accessing the data on this iPhone—as it had many times before in similar circumstances—and only changed course when the government’s application for assistance was made public by the court,” the statement said.