The Law Underpinning the Apple-FBI Fiasco -

The Law Underpinning the Apple-FBI Fiasco

Stan Ward

Stan Ward

April 18, 2016

There has been much arguing and debate in the continuing encryption debacle surrounding Apple and the FBI. In all the drama and heated discussion, one topic should be brought into sharper focus – that is, the role played by an innocuous 227-year old statute (The All Writs Act), which was included in the verbiage which created the US Judicial system back in 1789.

What is interesting is how differing sides in the dispute rally around the anachronistic law. It is being championed in 2016 as an example of the Constitution being a living, breathing, evolving document . Thus, they contend it is applicable now in this day and time. The same folks would hold those elements of the Constitution, like the Second Amendment right to bear arms (aimed at fighting British occupiers, not arming the populace in perpetuity), is pertinent today. (*Editors note: Stan is obviously a little confused here, the All Writs Act in its original form was part of the Judiciary Act of 1789, not the Constitution).

At the heart of all the acrimony is the All Writs Act, which says that 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.” A writ, incidentally, is basically just a formal order that’s issued by a court. Essentially, it’s a sweeping legal motion that gives courts the authority to issue orders to compel compliance with a court decision-  assuming, of course that the bench’s directive is legal and necessary.

So, Apple is on solid ground in calling this old statute too vague, and while it may meet the standard of legality, it is certainly not necessary in this day and age of technological innovation, about which the Founding Fathers couldn’t even dream.

Nor could the simple farmers and merchants of 1789 envision the scope to which the law could be applied. The ramifications of the ruling compelling Apple to comply with the government’s request are already being felt.  Initially, the FBI promised that their request was a one-off, but it soon became apparent that this was not true. As of this writing, there are dozens of other thorny cases in the pipeline.

One such example involves a drug dealer in New York. In the two-year- old case, the FBI’s request to decrypt the drug dealer’s phone was denied by a judge. The legal issues involved are similar to those in the San Bernardino situation, and the All Writs Act was cited at the time, though the technology involved would make it easier to solve, and thus comply. Unlike the San Bernardino case, which would require a small army of technicians a few months to break into the phone, in the NY situation, Apple could easily provide the keys.

Even so, attorneys for Apple said that the company also intends to fight out this case, saying that although Apple has always complied with lawful court orders, the company now contends that this kind of use of the All Writs Act is not lawful.  As a result, the NY case isn’t about technological difficulty, or an inability to easily cooperate with the government. Instead, it is about the validity of applying the All Writs Act as a legal tool to force private companies to comply with the government.

Just as the authors of the Constitution could not envision the potential peril of more than 300 million guns being available in a land that would grow to a population of over 300 million people, neither could they conceive, in their agrarian minds, of companies as powerful and significant as Apple. The All Writs Act must be viewed through a 21st Century prism, and reflect the mammoth innovation that has taken place over nearly three centuries.