Anyone reading recent headlines knows that Apple, Inc. is engaged in a legal, and ultimately political, struggle with the U.S. Government over access to the cell phone of Syed Rizwan Farook, one of the shooters in the December 2, 2015 terror attack at the Inland Regional Center in San Bernardino, California. The core issue in that California proceeding is whether Apple should be forced to “create and load Apple-signed software onto the subject iPhone device to circumvent the security and anti-tampering features of the device in order to enable the government to hack the passcode to obtain access to the protected data contained therein.”

Magistrate Judge James Orenstein in the Eastern District of New York has something to say about the matter. In an action raising similar issues to those in California, Judge Orenstein has held that the All Writs Act does not give the court authority to order Apple to unlock a drug dealer’s iPhone. Judge Orenstein noted that the case before him mirrored at least a dozen other “pending cases in which the government and Apple disagree as to the court’s authority to command Apple to assist the government in defeating the passcode security of devices Apple has manufactured.”

Passed in 1789, and amended only a few times since, the All Writs Act provides that: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions agreeable to the usages and principles of law.” 80 Pub. L. 772, 62 Stat. 683, 944 (June 25, 1948) (as amended). Examining the history and language of the All Writs Act, Judge Orenstein concluded that the government’s request to get access to a locked iPhone may be “in aid of” the court’s jurisdiction and “necessary and appropriate”, but it was not an action “agreeable to the usages and principles of law.” The All Writs Act’s “usages and principles” language is “a source of interstitial authority that renders it unnecessary for Congress to anticipate every circumstance in which a federal court might properly act to vindicate the rights of parties before it.” But that doesn’t mean a court is empowered “to do something that another statute already authorizes” (and for which certain necessary threshold requirements need to be met) or “to issue an order that is explicitly or implicitly prohibited under a federal statute.” Nor, in Judge Orenstein’s view, does the All Writs Act go so far as to allow a court to issue an order “that accomplishes something Congress has considered but declined to adopt – albeit without explicitly or implicitly prohibiting it.”

Under the government’s view, the All Writs Act allows a court to issue an order when no law otherwise prohibits it from doing so, and where the need for the order is otherwise consistent with the government’s law enforcement function. But, Judge Orenstein took a more restrictive view, concluding that “[t]he most natural reading gives meaning to the whole phrase by limiting the permissible orders to those that not only fail to violate legislative prohibitions, but that also are consonant with both the manner in which the laws were developed (that is, the “principles” that the laws reflect) and the manner in which the laws have been interpreted and implemented (that is, the “usages” of the various laws).” The Court went on to note that the government’s broader interpretation of the statute, “which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it” would transform the All Writs Act “from a limited gap-filing statute … itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress’s superior ability to prohibit or preempt.”

FBI Director James Comey has observed that in society today: “[W]e have awesome new technology that creates a serious tension between two values we all treasure: privacy and safety. That tension should not be resolved by corporations …. It also should not be resolved by the FBI …. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before….” Judge Orenstein agrees, noting that 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 “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.” The Court’s concluding words may echo all the way to California.

Jeffrey L. Nagel is a Director in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.