By now, you have probably read about how the FBI is asking Apple to create software that would help the FBI unlock the iPhone of one of the deceased San Bernadino attackers. You have probably heard the talking heads scream about the privacy vs. security policy debate, but what law is at play?
The All Writs Act
You may have even heard the government is relying upon the All Writs of Act which was passed in 1789. Three years of law school and sixteen years of practice and I had not heard of the All Writs Act at 28 . § 165U.S.C. Surprisingly, it is very short:
(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.
The purpose of the law is to fill in the gaps to give courts the power to enforce their orders and subpoenas. Obviously, the use of the All Writs Acts has to be “agreeable to the usages and principles of law.”
How We Got Here
On February 16, 2016, the government received an ex parte order (which means without having anyone from Apple or anyone else arguing against the request) requiring Apple to provide “reasonable technical assistance to assist law enforcement agents in obtaining access to the data.” The order then lists what the court considers “reasonable technical assistance” including the oft-discussed decryption key that needs to be created to help unlock the phone. A copy of the order is here: SB-Shooter-Order-Compelling-Apple-Asst-iPhone.
Apple’s Legal Argument
Apple primarily argues that Congress has already decided tech companies like Apple cannot be forced to provide access to encrypted devices. Apple’s brief is here. Specifically, Apple cites to the 1994 Communications Assistance for Law Enforcement Act at 47 U.S.C. § 1001, et seq. CALEA, Apple argues, specifically states that electronic communication service providers and mobile phone manufacturers cannot be forced to “implement any specific design of its equipment, facilities, services or system configuration” to unlock or decrypt phones.
Apple then argues that Congress has considered amendments to CALEA, but decided not to amend the 1994 law to require so-called back doors to encrypted devices or programs. According to the brief, “Congress, keenly aware of and focusing on the specific area of dispute here, thus opted not to provide authority to compel companies like Apple to assist law enforcement with respect to data stored on a smartphone the designed and manufactured.”
Case Law on the All Writs Act
The U.S. Supreme Court spelled out the test for whether the All Writs Act could be used in U.S. v. New York Telephone, 435 U.S. 159 (1977). In that case, the Court required the phone company to install a pin register device on two telephone lines.
The Court provided a three-part test:
(1) is the company so far removed from the controversey that its assistance could not be reasonably compelled?
(2) What is the burden on the company whose assistance is sought?
(3) Are there other alternatives?
In light of those factors, Apple argues:
(1) the company does not own or control or the phone or the data the government is seeking;
(2) It would be difficult for Apple to build the requested unlocking key and Apple does not want to for marketing and concerns about additional requests in the future. Apple says it would take six to ten employees two to four weeks to develop it.
(3) The government made it more difficult when they changed the iCloud password and did not prove that the government exhausted all of the available digital forensics resources available to them.
Finally, Apple contends forcing them to create software would force them into compelled speech in violation of the First Amendment and would constitute an unlawful arbitrary action against Apple without due process in violation of the Fifth Amendment.
The Department of Justice’s Response
In its response, the Government tried to shift the focus back to the specific facts of this case and this one phone in light of the three-part test and away from a greater policy argument.
The government says that just because Congress did not make any changes to CALEA does not mean the All Writs Act does not apply to fill in the gap as it has been used a number of times to require companies to unlock phones and other devices.
Regarding the three factors from the New York Telephone case,
(1) Apple purposefully licensed the operating system in the phone that allowed for encryption, so Apple’s involvement is sufficient. Involvement does not mean a company participated or even specifically knew there was criminal conduct. It only requires that Apple be “closely connected” to the crime.
(2) While the burden to create the software might be burdensome on a small company, the Government says it would not be unreasonable for Apple which encrypted the software in the first place. The Government would compensate Apple and work to minimize the burden.
(3) The FBI says it cannot unlock the phone without Apple because Apple built the code to prevent any access. They claim the fact that Apple cannot access it without building something new proves Apple is necessary.
Apple can file a response on March 15 and the hearing is scheduled for March 22.