We’ve all heard that there’s a federal judge in California who ordered Apple to make a tool to help the FBI decrypt a phone belonging to one of the San Bernardino shooters – but despite the FBI’s insistence that this is a special circumstance, San Bernardino is just one of a dozen-odd cases where the FBI is making similar demands on Apple.
The judge in one of those cases just clobbered the FBI and the DoJ’s interpretation of the 18th-century “All Writs Act,” which says that judges can order people to do specific things to help law enforcement officers.
New York Eastern District magistrate judge James Orenstein is presiding in a drug case where the US government is hoping to compel Apple to make a “bypass device” to let it unlock a suspect’s phone. Judge Orenstein has emphatically rejected the government’s request, slamming their interpretation of the the All Writs Act in the process:
The government’s position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law – which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it – would transform the [All Writs Act] from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress’s superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction. [Emphasis added.]
The order comes just three days before briefs are due to the judge in San Bernardino, whose initial order under All Writs flies in the face of Orenstein’s reasoning.
To understand some of the constitutional questions raised by this issue, you need to understand that multiple courts have ruled that software code is a form of expressive speech, protected by the First Amendment. Previous code-as-speech cases dealt with censorship: attempts by the government to suppress the publication of code (for example, code that could be used to encrypt data beyond the reach of the NSA).
But these cases raise even stronger free speech issues than those raised by compelled silence: compelled speech and compelled false speech. The FBI wants Apple to produce code to its specifications – that is, they want to force Apple to utter specific speech. Worse, they want Apple to add a cryptographic signature to the code, a signature that says, “This code is safe and is designed to make your phone as robust as possible.” The government struggles to keep censorship orders within the bounds of the constitution, but compelled speech and compelled lies are going to be a serious stretch.
