简体中文
A national debate over the legal boundaries between law enforcement and technology was ignited by a magistrate judge’s ruling in California ordering Apple to help unlock an iPhone used by a shooter in the San Bernardino, Califattack.PHOTO:DAVID PAUL MORRIS/BLOOMBERG NEWS
(THE WALL STREET JOURNAL) Thefight over smartphone encryptionis shining a spotlight on the relatively obscure role of federal magistrate judges, low-level jurists who have become increasingly influential in shaping unsettled areas of privacy and surveillance law.
Two weeks ago, it was amagistrate judge’s orderin California that ignited a national debate over the legal boundaries between law enforcement and technology.
At issue in the case: whether the government can use an 18th-century law to compelAppleInc.to help unlock a cellphone used by a shooter inthe San Bernardino, Calif., attacklast December, which killed 14 people. U.S. Magistrate Judge Sheri Pym sided with the government, prompting strong opposition from Apple and other tech companies. The iPhone makerfiled paperslast week appealing the decision.
But on Monday, U.S. Magistrate Judge James Orensteinsided with Appleina separate drug casein Brooklyn, N.Y., saying the 18th-century law, calledthe All Writ’s Act, doesn’t give the government the authority to force Apple to extract data from a locked phone.
The rulings have put the lowest level of the federal judiciary in the center of one of the most sensitive policy debates facing the U.S.: where to draw the line between privacy and national security. The discussion is likely to continue for years and reach the country’s highest courts and lawmakers.
Magistrate judges are generally responsible for pretrial matters such as handling initial court appearances for criminal defendants and reviewing government applications for search warrants.
But the nation’s magistrate judges are now at the forefront of interpreting a muddy area of law with little precedent, especially as it relates to the use of new technologies and investigative tools by the government. Magistrate judges have been the first ones to reason through the legality of computer-hacking by the government, as well as the use of stingrays, a cellphone-tracking tool that is often used without a search warrant. Routine surveillance requests from the government increasingly carry constitutional implications around privacy, which is a departure from the past, former government officials say.
Rarely has attention on the magistrates been as focused and the stakes seemingly so high.
The situation “is very unusual,” said Michael Vatis, a former official with the Justice Department and Federal Bureau of Investigation, now a partner at Steptoe & Johnson LLP. “The traditional view of magistrates is they keep the trains moving on time. They’re not generally trying to set important precedents.”
The magistrate position was created by Congress in 1968 as a way to relieve the congestion on federal court dockets. Unlike their counterparts on federal district and appeals courts, the nation’s 500 or so full-time magistrate judges don’t get life tenure and instead serve eight-year terms that can be renewed.
Aspiring magistrate judges, who are often former federal prosecutors, must apply for the position and are chosen by a selection committee in each district court. The current annual salary for federal magistrate judges is $186,852. A 1989 law set compensation for magistrate judges at 92% of the salary of district judges.
Data on magistrates’ decisions is particularly hard to come by. Most of them aren’t public; government applications for search warrants or surveillance are almost always filed under seal so the target isn’t tipped off. Such applications are also “ex parte,” meaning there is no one on the other side contesting the government.
Judge Sheri Pym at the arraignment for Enrique Marquez, a friend of one of the San Bernardino shooters.PHOTO:MONA EDWARDS/REUTERS
Former government officials say magistrate judges historically have granted the bulk of applications placed before them by the government. Such applications are typically unopposed by anyone, and the government often presents magistrates with enough evidence to create “probable cause,” the legal standard needed to grant the request. Magistrate judges also may fear running afoul of the government that would be nominating them for a promotion, say legal experts.
However, in 2005, U.S. Magistrate Judge Stephen Smith in Texas denied a government request to track a cellphone’s location without a search warrant. The ruling paved the way for similar denials by other magistrates and set off what has since been dubbed the “magistrates’ revolt,” involving a handful of judges, including Judge Orenstein in Brooklyn, who have been especially vocal in questioning the constitutionality of government applications for surveillance.
“Magistrate judges are uniquely positioned to see this increasing use of technology by law enforcement,” said Andrew Crocker, a staff attorney at the Electronic Frontier Foundation, a nonprofit privacy organization. “They’re on the front lines, and they’re asking questions.”
Legal experts watching these cases say because the rulings are usually issued in secret, it is difficult to know whether the so-called revolt is gathering or losing steam.
Aside from Judge Pym’s ruling, U.S. Magistrate Judge Gabriel Gorenstein in Manhattan, N.Y., also granted the government’s request in 2014 tocompel an unnamed phone manufacturerto unlock a cellphone during a credit-card fraud investigation.
Because of the renewed attention to these types of government requests, experts say magistrates are likely to give more scrutiny to routine applications from the government—and reach out for help among colleagues.
Brian Owsley, a former magistrate judge in Texas who stepped down in 2013 and was part of the so-called revolt, said due to the unprecedented nature of some government requests, magistrate judges often seek advice from each other. Mr. Owsley, now an assistant professor at University of North Texas Dallas College of Law, said he used to email other magistrates if he received an unusual application, asking if they had seen similar requests.
The recent magistrates’ decisions related to unlocking iPhones are almost certain to be appealed. Jenny Durkan, a former Seattle U.S. attorney who is now a partner at Quinn Emanuel Urquhart & Sullivan LLP, said while magistrate judges may be shaping the debate in the short term, the ultimate arbiter of these issues may be the Supreme Court or Congress.
In Judge Orenstein’s order on Monday, he said the debate over this issue “must take place among legislators whoare equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive.”
