After seven years in office, it is now very clear what President Obama does when Congress refuses to do his bidding: he simply ignores the lawmaking branch and tries to use raw power to change the law by fiat.
He did it on immigration to grant amnesty to millions of illegal immigrants. He did on education to force Common Core on the states. And now he is doing it again to try to rewrite our nation’s privacy laws.
In 1994, Congress passed and President Clinton signed the Communications Assistance for Law Enforcement Act, which determines the requirements facing technology companies when law-enforcement agencies want their help with criminal investigations.
Specifically, the law states that it “does not authorize any law enforcement agency or officer to require any specific design of equipment, features [...] or system configurations to be adopted by any [...] manufacturer of telecommunications equipment.”
In other words, a mobile phone manufacturer, like Apple, can’t be forced to create a backdoor key for law-enforcement agencies to use to access any phone they want.
For years President Obama sought to change this law, but Congress disagreed.
So when one of the San Bernardino terrorists failed to destroy one of his three mobile phones, which was owned by the county for which he worked, President Obama saw his chance to rewrite the law through the courts.
The Federal Bureau of Investigations (FBI) is now claiming in federal court that the All Writs Act, passed in 1789, empowers the law-enforcement agency to compel Apple to create new software that will allow to get FBI agents into the terrorist’s phone.
Earlier this week, in front of the Senate Judiciary Committee, President Obama’s Attorney General, Loretta Lynch, testified that there was no link between the president’s failure to change the law in Congress and the FBI’s decision to use the All Writs Act to achieve the same result through the courts.
But a federal judge in Brooklyn, New York, who received a similar All Writs Act request from the FBI exposed President Obama’s tactics. In a February 29 ruling, Magistrate Judge James Orenstein wrote: “It is also 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.”
“Indeed,” Orenstein continued, “on the very same day that the government filed the ex parte Application in this case [...] it made a public announcement that after months of discussion about the need to update CALEA to provide the kind of authority it seeks here, it would not seek such legislation.”
People of good faith can have honest disagreements about what tech companies should or should not be compelled to do by law enforcement. But the proper place for that debate and policymaking process is Congress, not the courts.