Although the New York and San Bernardino cases differ in the technical details of what the government wants Apple to do, Orenstein's order is bound to be instructive in the California case because of its thoroughly reasoned analysis of the All Writs Act's limits. In particular, Orenstein argues persuasively that Apple's decisions to implement robust security features in iOS must be viewed against the backdrop of congressional inaction. Under current law, Apple's choice to design its software this way is entirely legal; indeed some members of Congress have introduced legislation to protect the right to uncompromised encryption.
And that's not the only way in which Orenstein acknowledges the ongoing national debate. Earlier this month, in a motion to compel Apple to comply with the San Bernardino order, Department of Justice attorneys claimed the company's opposition "appears to be based on its concern for its business model and public brand marketing strategy." Maybe so, writes Judge Orenstein, but that is hardly cause to require Apple to compromise the security of its devices.
In considering the burden the requested relief would impose on Apple, it is entirely appropriate to take into account the extent to which the compromise of privacy and data security that Apple promises its customers affects not only its financial bottom line, but also its decisions about the kind of corporation it aspires to be. The fact that the government or a judge might disapprove Apple's preference to safeguard data security and customer privacy over the stated needs of a law enforcement agency is of no moment: in the absence of any other legal constraint, that choice is Apple's to make, and I must take into account the fact that an order compelling Apple to abandon that choice would impose a cognizable burden on the corporation that is wholly distinct from any direct or indirect financial cost of compliance.
In any case, it is clear that Judge Orenstein views the government demands as a question of constitutional significance. He reserves his strongest words for the conclusion of the order, which takes the government to task for attempting to short-circuit a critically important national debate:
How best to balance those interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive. 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.
We're pleased to see a federal judge recognize the value of that ongoing conversation, even as the government would bypass it entirely.
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