Cybersecurity & Tech Surveillance & Privacy

EDNY Hearing on Encryption Case

Quinta Jurecic
Tuesday, October 27, 2015, 10:19 AM

Attorneys from Apple and the Department of Justice spoke yesterday before Judge James Orenstein of the District Court for the Eastern District of New York at a hearing on a high-profile case regarding encryption.

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Attorneys from Apple and the Department of Justice spoke yesterday before Judge James Orenstein of the District Court for the Eastern District of New York at a hearing on a high-profile case regarding encryption.

The case concerns the government’s request for a judicial order requiring Apple to decrypt a secured iPhone for the purposes of an ongoing law enforcement investigation, under the authority of the All Writs Act. Apple has argued that, though it would be technically possible to decrypt the phone, the company cannot be mandated to do so under the All Writs Act. Decrypting the phone, it argues, would present Apple with an undue burden, a fact which relieves the company of the obligation to assist under the Act according to United States v. New York Telephone Co.

Francesca Procaccini and I have provided updates on the case here and here.

A transcript of the hearing is not publicly available right now, but I have put the following together from the following press accounts: Reuters, the Wall Street Journal, Vice, and the New York Law Journal.

During the hearing, Judge Orenstein seemed highly skeptical of the government’s prospective use of the All Writs Act in this case, regarding it as a dramatic expansion of the Act’s grant of power. As Francesca clarified, the Court has held previously that the All Writs Act cannot simply be used “whenever compliance with statutory procedures appears inconvenient or less appropriate,” but only in cases where the issuance of a writ is not otherwise addressed by a statute.

In his initial ruling requesting Apple’s brief on the feasibility of decryption, Judge Orenstein suggested that Congress’s failure to expand CALEA to include companies like Apple represents an intentional legislative choice not to grant law enforcement the power to compel companies’ assistance in cases like this one. Following this reasoning, the All Writs Act would not supply statutory authority for Judge Orenstein to issue the government’s requested order.

Judge Orenstein continued this line of questioning during yesterday’s hearing, pushing back against U.S. Attorney Saritha Komatireddy’s characterization of the All Writs Act as a “practical, gap-filling statute” and her argument that “all Congress has done here is start a debate.” Given Congress’ refusal to expand CALEA, Orenstein suggested, for the judiciary to use the All Writs Act in this case would “[take] away legislative authority from Congress and [put] it squarely into the court.” Such an action, he said, “seems to be ... at odds with the separation of powers.”

The judge also indicated his view that the government is “asking [Apple] to do work for you” and asked Komatireddy whether, under the government’s interpretation, the All Writs Act was sufficiently broad as to “compel service over a conscientious objection.” He compared the government’s requested order with a hypothetical order to force a drug company opposed to the death penalty to assist with a lethal injection. The inflammatory nature of the hypothetical, he said, was intentionally designed to push Komatireddy to answer how far the government’s reading of the All Writs Act could go. Komatireddy asked to respond to his question in writing.

At one point, the hearing turned to a controversial argument made by the government in its response to Apple’s initial brief on the feasibility of encryption: because Apple licenses, rather than sells, its software, the brief states, it is not “far removed” from the law enforcement investigation under New York Telephone Co. and can be compelled to assist in the investigation. This argument “struck me as a total red herring,” Judge Orenstein said. “I don’t get it at all.”

The judge linked the case before him to the debate between government officials and technology companies over “going dark,” noting the Obama administration’s recent decision not to seek legislation mandating encryption “backdoors.” While Komatireddy said that this decision was unrelated to the matter at hand, Judge Orenstein argued that both encryption back doors and the government’s requested order represented “the same basic idea.”

Judge Orenstein’s skepticism was not directed entirely at the government, however. He also reserved some for Apple, questioning why the company has suddenly reversed its position on cooperation with law enforcement investigations after complying in roughly 70 similar cases since 2008. (This figure came from Komatireddy; Apple did not provide its own estimate.)

Komatireddy argued that Apple “had an established procedure to routinely take care of these requests,” and that this case does not substantively differ from cases in which Apple has cooperated in the past, calling into question Apple’s claim that decrypting the phone would be unduly burdensome. In response, Zwillinger stated that, “Right now Apple is aware that customer data is under siege from a variety of different directions. Never has the privacy and security of customer data been as important as it is now.” He further argued that this was the first time that Apple had been invited to argue the matter in court.

But the judge pointed out that Apple’s history of compliance without litigation would seem to erode the trust of its customers--a key component of Apple’s argument that decryption poses an undue burden--more than compliance after litigation.

“It just seems to me that there’s a dog that didn’t bark here,” he said.

Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.

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