Judge In Different Apple Case Says That All Writs Act Doesn't Mean Apple Needs To Help Feds Break Into Phone

Everybody has obviously been focused on the DOJ's All Writs Act request on Apple in the case involving the San Bernardino attacker's work iPhone, but as we've been covering there are a other cases where the feds have made use of the All Writs Act as well, including a key one in NY in the court of Magistrate Judge James Orenstein that we've been covering for a while now. Orenstein has already expressed skepticism about the government's argument, and now has come out with a well timed order denying it. Judge Orenstein is no fool, and knows that the world will pay close attention to his order -- so it's pretty detailed. Also, and this is important, it basically mimics the key argument that Apple has made in its filing in the San Bernardino case, saying that the All Writs Act is preempted by other laws (mainly CALEA) and therefore, Apple cannot be compelled to help. In short, Congress has addressed this more specific issue and hasn't passed a law that allows the government to get what it wants, so the government can't just fall back on the All Writs Act to do what Congress failed to do:

More specifically, the established rules for interpreting a statute's text constrain me to reject the government's interpretation that the AWA empowers a court to grant any relief not outright prohibited by law. Under a more appropriate understanding of the AWA's function as a source of residual authority to issue orders that are "agreeable to the usages and principles of law," 28 U.S.C. § 1651(a), the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to issue an order under the AWA: the closeness of Apple's relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; and the necessity of imposing such a burden on Apple. As explained below, after reviewing the facts in the record and the parties' arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will. I therefore deny the motion.

In the case -- involving drug trafficking (not terrorism) charges against Jun Feng -- the DEA seized Feng's iPhone 5 (with iOS7) and wanted to use the All Writs Act to compel Apple to help open it up. The case was complicated by the fact that as this was being debated, Feng took a plea deal. However, the government still wanted to move forward to set a precedent (it claimed the information might be useful in sentencing or to find other partners and customers of Feng). Judge Orenstein "agreed" with the government that the issue is not moot, based on this, but uses it as a chance to shoot down its All Writs Act argument entirely. In going into detail, Judge Orenstein basically repeats the basic argument that CALEA rules here, and the All Writs Act does not apply:

I believe Apple has the better argument – both because it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also because even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe.

Judge Orenstein goes on for many pages, in great detail, explaining why CALEA applies over the AWA and why it says that Apple need not help the government here. It's worth a read, but it follows pretty closely on Apple's own arguments. There are also some pretty good lines and takedowns of government arguments, and I'll just note one here, involving how the government's argument could be so widely abused, in particular how the DOJ says that because Appl