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Noah Feldman

Apple v. FBI? Let Congress Decide

Complex questions of national security and personal privacy don't belong in the courts.
Did the FBI try 1-2-3-4?

Did the FBI try 1-2-3-4?

Photographer: Chris Goodney/Bloomberg

The fight over whether Apple should write new software to unlock the iPhone used by the San Bernardino, California, killer may be poised to go to Congress -- and that’s the first good news I’ve heard about the confrontation. The case raises profound matters of public policy with constitutional, domestic and international ramifications. A magistrate judge working for the federal district court isn’t the right person to decide these issues, nor would higher courts be in a good position to make wise judgments on appeal. What we need here is a law -- one that reflects, to the extent possible, the legitimate competing values in play.

The reason the magistrate is even involved derives from the misleadingly simple nature of the problem. When a federal criminal investigation is under way, magistrates are deputed by federal district judges to issue warrants. In this instance, the Department of Justice asked the magistrate to issue an order to Apple to enable it to unlock Syed Rizwan Farook’s iPhone.