Perhaps most devastating to the FBI’s case is Orenstein’s recognition that the purpose of the FBI’s request is not simply to obtain evidence in one particular case, but rather to grant the government broad, precedential authority to force Apple and other tech companies to take affirmative technological steps to cooperate with criminal investigations generally. That the FBI is seeking to establish broad precedent is a key argument made by Apple and its supporters in the San Bernardino case. To accept that the U.S. government has this power, ruled the court, is to vest law enforcement agencies with statutory authority that Congress itself never enacted.”
And again, “The judge also accused the government of trying to manipulate secret judicial proceedings to obtain powers for itself against Apple that public debate and Congress would never permit. It is, Orenstein wrote, ‘clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking.’ Because the government wants the courts rather than Congress to grant this power, the ‘government’s interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction … raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine.’”
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