The FBI’s case against Apple got kneecapped in Brooklyn: The judges rebuke couldn’t have been stronger

“It was a case about a drug dealer in New York, not a terrorist in California,” Philip Elmer-DeWitt reports for Fortune. “But when U.S. Magistrate Judge James Orenstein on Monday denied a routine request to unlock an iPhone in Brooklyn, he clearly had bigger issues in mind.”

“In a 50-page ruling that read like a Supreme Court brief, he rejected in no uncertain terms the Department of Justice’s aggressive use of the broad powers of the 1789 All Writs Act to force Apple to do its bidding in San Bernardino,” P.E.D. reports. “Using the word ‘tyranny’ once and ‘absurd’ nine times, Judge Orenstein accused the DOJ of trying to use the authority of the All Writs Act to get through the courts what it couldn’t get from Congress.”

“It’s one thing for Tim Cook and his supporters in Silicon Valley to accuse the government of over-reaching. It’s quite another when the accusation comes from a federal judge,” P.E.D. reports. “‘[The DOJ’s] preferred reading of the law,’ he wrote, ‘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.'”

Read more in the full article here.

MacDailyNews Take: As much as Judge Sheri Pym doesn’t get it, Judge Orenstein does.

U.S. Magistrate Judge: The U.S. government cannot force Apple to unlock an iPhone in New York drug case – February 29, 2016
Apple wants judge to rule if it can be forced to unlock defendant’s iPhone – February 16, 2016
Government pressure for Apple to bypass encryption reduced as iPhone owner enters guilty plea – October 31, 2015
Judge compares government request for Apple to access users’ iPhone data to execution order – October 27, 2015
U.S. judge expresses doubts over forcing Apple to unlock iPhone – October 26, 2015
US DOJ claims Apple lacks legal standing to refuse iPhone unlock order – October 23, 2015
Apple tells U.S. judge it can’t unlock iPhones running iOS 8 or higher – October 20, 2015
a href=””>Apple CEO Cook defends encryption, opposes back door for government spies – October 20, 2015
With Apple court order, activist federal judge seeks to fuel debate about data encryption – October 12, 2015
Judge declines to order Apple to disable security on device seized by U.S. government – October 10, 2015
Apple refused to give iMessages to the U.S. government – September 8, 2015
Obama administration war against Apple just got uglier – July 31, 2015
Edward Snowden: Apple is a privacy pioneer – June 5, 2015
U.S. Senate blocks measures to extend so-called Patriot Act; NSA’s bulk collection of phone records in jeopardy – May 23, 2015
Rand Paul commandeers U.S. Senate to protest so-called Patriot Act, government intrusion on Americans’ privacy – May 20, 2015
Apple, others urge Obama to reject any proposal for smartphone backdoors – May 19, 2015
U.S. appeals court rules NSA bulk collection of phone data illegal – May 7, 2015
In open letter to Obama, Apple, Google, others urge Patriot Act not be renewed – March 26, 2015
Apple’s iOS encryption has ‘petrified’ the U.S. administration, governments around the world – March 19, 2015


    1. The judge’s ruling is correct, but the American people do not owe him a great debt. He was doing his job – no more, no less. That job was to apply the law as he sees it – which is what all judges should do. In the same way that judges Koh and Cote did not deserve vilification on this site for applying the law the way they saw it (and remember, Cote’s ruling was upheld by the court of appeals and some of Koh’s rulings for Apple have been watered down by the CA court of appeals, so there’s no argument they were rogue decisions), neither does Orenstein deserve anything special for his ruling.
      Many people on this board think that judges are personally invested one way or another in cases. They’re not. Their job is to be objective about the facts and the law, not subjective about emotions or what they want to be the result. Usually they make the correct legal decision; only occasionally do they get it wrong – nationwide, only 14% of cases are appealed, and of those, only 17% are reversed. In other words, less than 2.5% of trial court rulings get reversed by appeals courts.
      Be happy Orenstein ruled the way you wanted him to; but he is not a folk hero.

      1. You’re trying to tell me that there was no correlation between how Judge Koh made her rulings and her being nominated to the court of appeals?

        Yes, judges are SUPPOSED to be impartial, but in reality, there’s a lot of politics going on.

        1. Exactly!

          Lemon might have a point if judges weren’t human beings subject to the same personal foibles as everyone else.

          And those appeals percentages are meaningless as they have little relationship to a judge’s legal objectivity and/or validity of their opinion. Also, I’m sure a little research would turn up that most appeals are initiated by the state. Unlike most, the state has the resources to do so when cases don’t go their way.

          1. The appeals stats don’t tell the story…

            1. First, just about everyone who has been convicted of a crime WANTS an appeal. However, most are never granted one.
            2. Judges do not typically like to overturn the decisions of other judges.

            1. chef: First, I’m talking civil cases, not criminal. Second, every civil litigant has one right of appeal, plus additional discretionary appeals. Third, courts of appeal do not care about overturning lower courts if the lower court was wrong. That very fact keeps trial court judges on their toes – they get measured by how many cases are reversed.
              It’s clear you don’t work in the legal field.

        2. Yep, that’s exactly what I’m telling you, chef. When Koh made her rulings in the Apple v. Samsung cases, she had no concept of being elevated to the Ninth Circuit. And don’t forget that the appellate court has watered down some of her rulings in those cases – indicating the appeals court judges think she erred to Apple’s benefit to some degree.
          If you want to see what the legal community thinks of Koh, read
          There are simply too many conspiracy theories on this board.

      2. Uh having dealt with judges (who were PAID to essentially be arbitrators) I can tell you many are a goofball lot, and often not see the forest for the trees. Sometimes ruling capriciously or in their own long drawn out self-interests. There is no special law deity who comes down and touches these doofuses and makes them specialt. They’re human and quite fallible, capable of making grievous errors of judgment like everyone else. Don’t let the robe fool you.

      3. Lemons,

        Given what passes for “paid expertise” in this country lately (ahem, Lucy Koh decisions, cough), I agree with chefpastry that the American public owe’s Judge Orenstein a debt of gratitude. Yes, he is a paid civil servant …but so are the ones who get it wrong.

        Also, quarterbacks are paid to get touchdowns, yet we still feel it appropriate to laud achievement and outstanding plays. The same sentiment applies to Judge Orenstein’s insightful rebuke of the government’s request. What’s the big deal?

        Bravo, Judge Orenstein.

        1. Just because you don’t agree with Koh’s decisions doesn’t mean that they’re legally wrong. Koh is considered one of the preeminent judges in the tech field in the country. I suspect she knows a great deal more about the law than you do. See
          That doesn’t mean that the law is right. What we’re facing are old laws dealing with new issues – issues that didn’t exist when the laws were written. But it’s not Koh’s job to change the law. That’s the job of this do-nothing congress. In Apple v. Samsung, Koh ruled that outdated laws protected Samsung to some degree. The court of appeals agreed with her rulings in large part, but actually reversed some aspects of her rulings that had been in favor of Apple. Yet the conspiracy theorists on here still hold her in contempt for not giving Apple a 100% win – a win that would have been overturned on appeal. In the drugs case, the judge ruled that the US is overreaching trying to make a several hundred year old law apply to current situations it was never intended to apply to. I hope his ruling stands.
          But I don’t think you can fairly accuse either of them of not being objective. The people who do so simply don’t know the law.

          1. Sorry, Lemons. Koh is not all you chalk her up to be.

            What did Koh do when Apple discovered Samsung’s lawyers had divulged sensitive commercial information, despite the Judge’s strict orders to keep the information confidential? She bitch-slapped the Apple lawyer who said the court’s strict instructions “must have been lost in translation”. Did she fine or otherwise punish Samsung or its lawyers guilty of egregious breach of the court’s instructions? Hardly.

            In her brief on the topic, Judge Koh cited an article, entitled “Xenophobia in American Courts”, by Federal Judge Kimberly A. Moore who was appointed to the US Court of Appeals in 2006. (Who knows, maybe Judge Moore is sponsoring Koh for the Court of Appeals?) The only problem, if anyone cares to read that paper — you purport to be knowledgeable on this general topic, Lemons– is that it is pure bullshit. It purports to show Xenophobia in American Courts when its method is incapable of doing so.

            So results produced by a poor statistical analysis that suggest correlation at best, but are incapable of showing causation, that Xenophobia is seen in American Courts …become published. That publication, in turn, finds its way into a Federal Court case as a citation for the proof of xenophobia in American Courts, which is the basis to brow-beat Apple and Apple’s lawyers. When the real point of the Apple lawyer’s statement was basically: “Geez, Judge, you either understand the court’s instructions and follow them, or you don’t — what gives, for Gawd’s sake???!!!

            Koh bitch-slaps Apple. Koh sucks up to Moore. Moore endorses Koh for the Court of Appeals. Looks like one big, happy family interaction.

            Most reasonable observers would agree the whole episode was one more travesty of justice …with plausible deniability.

            Incidentally, in her handling of the Apple cases, it looks to me like Koh is still doing her thing of “raging against the machine” dating from her school days when she protested against Harvard Law School’s policies. Time for her to grow up. These decision are far too important to the country to have an amateur with an agenda decide.

  1. I read an article about that case and the judge’s rebuke was absolutely spot on. Let’s hope there is more sane reasoning coming out of this mess, which should not have happened in the first place.

    1. Agree. Judge Orenstein’s decision reflects a thoughtful and insightful mind. On target.

      He made some real zinger statements, too, that I loved reading, like this one: “It would be absurd to posit that the authority the government sought was anything other than obnoxious to the law.”

      Go Apple!

      1. Yeah, he’s written some great stuff, reminds me of the late Thomas Penfield Jackson, the judge who was on the Microsoft monopoly case for a while.

        One of my favorite comments of his is found in his Wikipedia entry; “The judge also characterized Microsoft leader and co-founder Bill Gates as a Napoleon, “unethical”, as well as comparing him to a “drug trafficker” repeatedly caught as a result of telephone wiretaps.”

        It’s so deja vu.

        Have a good day.

        1. Yes. Too bad Clinton — it was Clinton, wasn’t it? …or was it George Bush père?– waived off the finding of anti-trust for Microsoft. Travesty of justice. What’s the point of the law? The courts take forever deciding anything. Then adverse findings get waived off because ~implementing them would be too painful for alll~ given the scope of the now-entrenched technology. Batshit crazy.

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