From out the rind of one “Apple” tasted

The Controversy

The tug of war between cyber and national security rages on. But in this high-tech age of metadata, the Twitterverse, smartphones, and Ed Snowden, few would expect an archaic and little-used statute from the Republic’s earliest days to take center stage.

Last Tuesday, that’s exactly what happened. U.S. Magistrate Judge Sheri Pym from California’s Central District relied on the 227-year-old All Writs Act, 28 U.S.C. § 1651 (2012), to order Apple to assist the FBI in executing a search warrant covering the contents of the San Bernardino shooter’s government-owned Verizon iPhone 5C. Order Compelling Apple, Inc. to Assist Agents in Search, In the Matter of the Search of an Apple Iphone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. 5:15-mj-451, 2016 WL 618401, at *1 (C.D. Cal. Feb 16, 2016).

The next day, Apple hit back—hard—not in court, but, shrewdly, online. In an open letter from CEO Tim Cook, the company painted the federal court order as a step too far, conflating it with a dystopian world in which the government surveils every aspect of citizens’ digital lives without their knowledge. The letter set the internet, the media, and the presidential race alight. Many tech companies, consumers, and politicians jumped to Apple’s defense, while others jumped away, firmly establishing the controversy’s political fault lines well before Pym’s five-business-day deadline for the company’s in-court response.

By Friday, the prosecution had responded to the specifics of Cook’s letter with an acerbic but legally extraneous motion to compel Apple’s compliance with the initial order, the court had extended Apple’s deadline by three more business days, and Apple had recruited former Solicitor General Ted Olson into its corner. With neither party likely to back down, this fight looks set to go all the way to the Supreme Court.

The Order

Pym limited her order to three specific tasks that she deemed “reasonable technical assistance” for purposes of the All Writs Act: (1) bypassing the phone’s auto-erase function; (2) enabling the FBI to programmatically “brute force” (i.e., guess) passwords to unlock the phone; and (3) bypassing the phone’s user interface in order to speed the process up. Id.

Pym further suggested that Apple accomplish these tasks via a portable application that loads and runs directly on the phone’s RAM rather than from the phone’s mass storage—leaving iOS, the phone’s operating system, unchanged—and that Apple key that portable app to the shooter’s phone so that it can’t be used on any others. However, Pym left it to Apple to accomplish her three mandates in whichever way it sees fit, so long as the FBI ultimately approves of the company’s chosen technique. Id.

Importantly, Pym also gave Apple the option to run its portable app on the shooter’s phone at one of its own facilities—rather than hand the powerful software over to the FBI—so long as the company gave the FBI remote access to the password entry results. Just as critically, Pym explicitly relieved Apple from a duty to retain any consumer data retrieved from the phone, maintaining that it will be the FBI’s responsibility do so. Id.

The All Writs Act

The All Writs Act derives from language in Section 14 of the Judiciary Act of 1789, ch. 20, 1 Stat. 73, 81-82, passed by the First Congress at a time when judicial authority and, indeed, the powers and mechanics of the federal government as a whole remained largely undefined. The language was thus purposefully broad, serving as a residual source of authority to fill unintended gaps in judicial power. It allowed federal courts “to issue . . . all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law.” Id.

Today, federal judges have over two centuries of lawmaking and jurisprudence through which to understand the extent and limits of their power. Even so, the modern statute, having been individually codified by Congress, has nonetheless retained the original’s breadth. It reads:

Writs

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

All Writs Act, 28 U.S.C. § 1651 (2012). Over time, the All Writs Act has come to stand for the benign-sounding proposition that federal courts have the power to “require reasonable third-party assistance that is necessary to execute a warrant.” In United States v. New York Telephone Co., 434 U.S. 159 (1977), the Supreme Court held that the All Writs Act compels a third party to provide technological assistance in executing a search warrant when three factors are met: (1) the third party is not too “far removed from the underlying controversy;” (2) the order does not place an undue burden on that third party; and (3) the third party’s assistance is necessary to execute the warrant.

What Next?

In this case, where there is no other controlling statute, and where the phone’s owner—the county government—has given its explicit consent to both Apple and the FBI to search the device, both case law and Pym’s order itself suggest that Apple’s best strategy is to show that assisting the FBI would be “unduly burdensome.” Search of an Apple Iphone at *2. That could be a tall order, if, as the prosecution contends, “Apple has consistently complied with a significant number of orders issued pursuant to the All Writs Act to facilitate the execution of search warrants on Apple devices running earlier versions of iOS,” and, furthermore, that it wasn’t until 2015 that Apple first disputed any such order. Government’s Motion to Compel Apple Inc. to Comply with this Court’s February 16, 2016 Order Compelling Assistance in Search at 2, 10, In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. 5:16-cm-10 (C.D. Cal Feb 19, 2016).

Regardless of which party ultimately wins this case, public outrage upon its disposition is inevitable. That outrage, in turn, will force the entire nation and its legislators to ask themselves new questions not just about privacy and national security, but also about the continued appropriateness of broad, residual court authority in modern-day America. Apple deciding to make the All Writs Act one of this term’s hot-button issues may yet spur Congress to act. In a Sunday night blog post hitting back at Apple’s letter, FBI Director James Comey summed up the state of affairs: “[The tension between privacy and safety] should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before . . . because finding the right place, the right balance, will matter to every American for a very long time.”

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