Remember Judge James Orenstein? He’s the federal magistrate judge in the Eastern District of New York who refused the FBI’s request to order Apple to help them break into an iPhone. I found his decision particularly interesting because the facts of the case almost exactly tracked the famous San Bernardino case that Apple vigorously resisted until the FBI gave up and found other means of getting the data. If you’re vague on the details, here’s a summary that I wrote at the time.
Orenstein recently had an op-ed in the New York Times in which he discusses privacy in the Internet age and bemoans the fact that privacy policy is being set by prosecutors who have little interest in protecting your privacy if it gets in their way. This is the result, he says, of Congress’s failure to act.
Today’s reality is much different than it was just a few years ago. Now our entire lives are very likely recorded in our smart phones. It’s little wonder that the police and prosecutors are itching to get their hands on the data they contain. Often times, that desire is justified but it should still require a warrant issued for probable cause not just some easy administrative subpoena. What’s needed are clear procedures and rules as to what’s permissible and what’s not. Currently, we don’t have that.
Orenstein puts the blame squarely where it belongs: on Congress. Their failure to act has created a void that prosecutors are happy to fill with dubious doctrines if they can find a judge to agree. Read his op-ed. It’s interesting and informative.