Orenstein is known for his part in the "magistrates' revolt," a movement where the lowest levels of the federal judiciary became skeptical of warrant applications for data
If the All Writs Act seems like a ridiculous hack that renders the entire complicated system of warrants, subpoenas, and other kinds of court orders for various searches and seizures invalid—don't worry, it's not and it doesn't. The government can't go to court and mumble "All Writs Act" to get whatever it wants. The Supreme Court has said, "Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act that is controlling." On top of that, the All Writs Act can't be used if the order would be too burdensome.
Orenstein replied on February 16, asking Apple to list the specific cases it was hinting at. Before they could reply, Orenstein had already had his answer: that very day, the California ruling came down, compelling Apple to build a backdoor in order to hack the dead San Bernardino shooter's iPhone.There are, of course, multiple cases involving iPhones and the All Writs Act across the country. (In its reply to Orenstein, Apple identified nine.) But the San Bernardino case has the country's attention, as well as Orenstein's, and it is the one that Apple is throwing all of its weight behind.On Thursday, Apple filed a motion to vacate the California magistrate judge's initial ruling. It is no coincidence that Orenstein's decision came down the following Monday, inserting himself neatly into a debate around a case on the opposite side of the country.His actions back in October were the judicial equivalent of shooting off a flare gun, aimed at grabbing the attention of his fellow magistrate judges. But as Apple fights the San Bernardino ruling, the magistrate judge is now lighting up a signal fire.Preempted by CALEABoth the Apple brief in the California case and Orenstein's ruling have adopted the argument that because the Communications Assistance for Law Enforcement Act (CALEA) does not authorize law enforcement to get the kind of order it is seeking in the iPhone cases, the All Writs Act doesn't, either.Related: Why the FBI's Order to Apple Is So Technically Clever
"It is wholly implausible," wrote Orenstein, "to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: 'All legislative Powers herein granted shall be vested in a Congress of the United States[.]' U.S. Const. Art. I, § 1.""It would betray our constitutional heritage and our people's claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789."
What happens next?The San Bernardino iPhone case is due for a hearing on March 22. In the meantime, both sides are launching all kinds of distracting spectacles. A Congressional hearing on encryption is scheduled for Tuesday; Apple has moved its product announcement to March 21, the day before the hearing.A magistrate judge's ruling in the Eastern District of New York can't bind another magistrate judge in the Central District of California. But Magistrate Judge Sheri Pym is bound to look at the Orenstein opinion before March 22, especially since Orenstein's reasoning overlaps well with Apple's arguments in its California case. And besides, Apple (and likely many of the amici curiae) will be citing the Orenstein opinion in briefs to come."It is also clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking."
Meanwhile, the legal battle is destined to drag out. "Though you can't be certain, I would be surprised if the California case—whatever the magistrate judge does—doesn't get appealed," said Crocker.Whether other cases in other jurisdiction will filter up through the appellate courts is uncertain. But if these are the second Crypto Wars, then Orenstein is trying to stir up a second magistrates' revolt against the overbroad use of the All Writs Act.Many warrant applications are silently approved while under seal and without any accompanying written explanation. If Orenstein succeeds in emboldening his fellow magistrate judges, we'll likely see many more of these cases emerge from the fog of secrecy.Correction: An earlier version of this story said the "magistrates' revolt" began after the Edward Snowden revelations about government surveillance; in fact it began earlier but gained power after the Snowden revelations.Read more: The FBI Is at War With Apple Because It Couldn't Change Wiretap Law