Last week, Apple was ordered by a federal magistrate judge to assist in decrypting San Bernardino terrorist Syed Farook’s iPhone.
In issuing the order, the court inserted itself in the debate between national security and security in one’s own private, personal information. But the court didn’t rely on some post-9/11 counterterrorism statute for its authority, but instead on the 225-year old “All Writs Act,” which is as old as the federal judiciary itself.
And, that’s the only authority that the court relied on.
So, what is this apparently all-powerful All Writs Act, and how is the court using it?
“All Writs Necessary or Appropriate…”
The All Writs Act has its genesis in the Judiciary Act of 1789 – the statute that established the federal court system. Its current form is in 28 U.S.C. § 1651, and states as follows:
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.
Pretty broad, wouldn’t you say? The Supreme Court has interpreted the act broadly, too.
In United States v. New York Telephone Co., the Act was applied to compel a phone company’s assistance with FBI surveillance of an underground gambling operation. In that case, the FBI could not wire or install a “pen register” (a device that records phone numbers) on the premises without tipping off the perpetrators. So, the FBI sought and received an order compelling the assistance of the phone company in installing a pen register at a safe, remote location – something that could only be done with the phone company’s technical assistance.
The phone company, through its noncompliance, was “in a position to frustrate the implementation of a court order or the proper administration of justice,” and was therefore brought under the Act even though a third-party with no part in the actual wrongdoing.
In the end, the pen register was installed with the phone company’s technical assistance.
The Apple Order and a Possible “Substantial Interest” Exception
The Apple order follows much the same blueprint as New York Telephone.
Much like the FBI’s inability to install a remote pen register without the New York Telephone’s assistance, the FBI – so it claims today – is unable to decrypt Farook’s phone without risking total data loss. In both cases, the FBI had effectively hit a dead end on its own technical expertise, and sought and received an order from the court compelling the technical assistance of a third-party in a position to help. And, vice-versa, without that compulsory assistance, that third-party would theoretically be in a position to hurt or hinder the investigation.
Apple’s counterargument is that developing a back-door into Farook’s iPhone, even if only to assist the government’s well-meaning investigation, would unlock “Pandora’s Box” – unleashing hackers and foreign governments against Apple and its products, and depleting Apple’s consumer goodwill based on the iPhone’s renowned security.
Apple’s argument tracks those positions rejected by the Supreme Court in New York Telelphone, that a “substantial interest in not providing assistance” may outweigh the inherent power of the court. In New York Telephone, the Supreme Court wrote:
…it can hardly be contended that the Company, a highly regulated public utility with a duty to serve the public, had a substantial interest in not providing assistance. Certainly the use of pen registers is by no means offensive to it…. compliance with [the order] required minimal effort on the part of the Company and no disruption to its operations
On review, this exception could possibly apply. However, the mechanical application of the All Writs Act to the facts Apple’s case – a failure of government technical expertise and the absolute requirement of third-party assistance – is so similar to New York Telephone that it would be difficult for a court to refuse to apply the Act in light of the exception.
Demetri Economou is an associate in Kane Russell’s Energy and Labor & Employment Practice Groups, based in Houston, and can be contacted at deconomou@krcl.com.
