FBI v. Apple: Why CALEA Matters So Much
Author’s Note: For an outline of how I think FBI v. Apple will play out, please see HERE.
Today I want to focus on whether existing legislation precludes the FBI from compelling Apple to hack their own encryption. Next week, I will dive into the question of whether or not the FBI’s request is “unduly burdensome” under the All Writs Act.
All Writs Act
The essence of Apple’s legal argument is that the Courts do not have the authority, under the All Writs Act, to compel Apple to break their own encryption on the behalf of the FBI.
The government has acknowledged that the authority for their request rests solely upon the All Writs Act. So, to understand this case, we must first understand the All Writs Act. Let’s start by looking at the statute itself.
28 U.S. Code § 1651 – Writs
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.
Over time, the courts have imposed some important limitations on the All Writs Act.
The All Writs Act is not a grant of power to the Courts. It is designed to allow the courts to use the power they have been granted, or already possess, in order to fill in any procedural gaps necessary to implement other, existing laws. Nor is the All Writs Act to be used merely because it is convenient to do so. It is to be used when inaction would otherwise cause an existing law to falter. This is why the Act does not apply where Congress has spoken or has elected not to speak.
Where a statute exists, the statute, not the All Writs Act, is controlling. ((See Pennsylvania Bureau of Correction v. U.S. Marshals Service, 474 U.S. 34, 43 (1985) (“Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.”) ))
The Communications Assistance for Law Enforcement Act is better known as CALEA. It presents four challenges to the FBI’s position in this case.
1.0. Four Challenges
1.1. Legislation Trumps The All Writs Act
The Supreme Court has stated that where a statutory scheme governs a particular subject matter, the All Writs Act’s residual power does not apply.
Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. ~ U.S. Supreme Court, Pennsylvania Bureau of Correction v. U.S. Marshals Service, 474 U.S. 34, 43 (1985)
1.2. CALEA Is Controlling
CALEA forced telecommunications carriers (telephone companies) to design their networks to better enable wiretapping by law enforcement. A telecommunications carrier is defined as:
(An) entity engaged in the transmission or switching of wire or electronic communications as a common carrier for hire. ~ 47 U.S.C. 24 § 1001(8)(A)
When Congress enacted CALEA, it exempted “information services” from its terms.
(CALEA) does not include persons or entities insofar as they are engaged in providing information services. ~ 47 U.S.C. § 1001(8)(C)(i)
Apple squarely falls within the definition of “information services.”
(T)he government does not dispute, or even discuss, that CALEA excludes “information services” providers from the scope of its mandatory assistance provisions. 47 U.S.C. § 1002(b)(2). ~ Apple Pleadings
“Information providers,” like Apple, are not considered to be “telecommunications carriers,” (telephone companies) and CALEA does not compel Information providers to assist law enforcement in obtaining data stored on the devices that they sell.
In 2013, the FBI tried to broaden both the scope and the powers conveyed in CALEA. More specifically, the FBI wanted CALEA to cover a multitude of additional companies, including Apple, and they wanted the act to grant them more power regarding encryption and other like matters. The legislative history on this matter is clear and unambiguous. Congress considered the proposed legislation and declined to act.
Congress thus considered shifting to third parties like Apple the very burden the government now asks this Court to impose, but it declined, knowing full well this meant there would be some communications that law enforcement could not access. ~ Apple Pleadings
The quote, above, makes an important point. The FBI has been kvetching that Apple is using their encryption to “obstruct justice”; that they are placing their own selfish interests above the legitimate needs of law enforcement. But it was Congress, not Apple, that made those policy tradeoffs when they enacted CALEA. If Congress had felt that the FBI’s need to know trumped the public’s need for privacy and security, Congress should not have, would not have, passed CALEA.
1.4. Exempted Encryption
The CALEA statute was a compromise, reached only after long, contentious negotiations. At the time it was passed, CALEA was considered a victory for law enforcement and a defeat for privacy advocates. Law enforcement won an extensive, but specific, list of wiretapping assistance from the telephone companies but, in exchange, they had to give something up. That something was any say in the encryption being created and distributed by information services, such as Apple.
CALEA made encryption legal.
Nothing in the bill is intended to limit or otherwise prevent the use of any type of encryption within the United States.
1.4.2. No Duty To Decrypt
CALEA explicitly stated that the government could not force information services (like Apple) to “decrypt or ensur[e] the government’s ability to decrypt” communications or information stored on their customers’ devices.
1.4.3. No Back Doors
CALEA specifically prohibited law enforcement agencies from requiring any specific design of equipment, facilities, services, features, or system configurations. In other words, Congress exempted Apple, and other companies, from creating backdoors — the very same back doors that the FBI now demands Apple create.
(CALEA) does not authorize any law enforcement agency…
(a) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services;
(b) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.
The FBI’s demand that Apple create and implement a work-around for the iPhone’s security features is, in fact, doing exactly what CALEA prohibits.
2.0. Four Rebuttals
Let’s look at how the FBI rebuts the assertion that CALEA, and not the All Writs Act, is controlling.
2.1. Legislation Trumps The All Writs Act
The FBI concedes that where legislation applies, the legislation, not the All Writs Act, is controlling.
2.2. CALEA Is Controlling
However, the FBI denies that CALEA is controlling. They contend that CALEA is not directly applicable to the current circumstances and that it is necessary for the courts to use the All Writs Act in order to fill in the legislative holes, and make the legislation whole.
2.2.1. Not On Point
The FBI, in its own words, argues:
Contrary to Apple’s claims CALEA did not deprive this Court of its power to issue the Order.
The statute does not address the particular issue before this Court.
(T)he (All Writs Act) “is controlling” unless “a statute specifically addresses the particular issue at hand.” Pennsylvania Bureau of Correction v. U.S. Marshals Serv. , 474 U.S. 34, 43 (1985)
(I)t is not enough for other laws to brush up against similar issues. Rather, Congress must legislate so “intricately” as to leave “no gap to fill.” The Company v. United States , 349 F.3d 1132, 1145 n.26 (9th Cir. 2003) ~ FBI Pleadings
Eh, I don’t know about that.
It seems to me that CALEA is directly on point. Of course, that’s for the courts, not me, to decide. But then again, as we’ll soon see, the courts have decided.
The FBI leans heavily on the language used in “New York Telephone” to support its contention that CALEA is not applicable here:
New York Telephone Co. further illustrates that it is appropriate for a court to rely on the All Writs Act unless a statute specifically addresses the particular issue at hand.
What the FBI neglects to mention is that in “New York Telephone,” the Supreme Court emphasized that the All Writs Act had to be aligned with congressional intent and that it could only be used as a gap-filler when it “was consistent with the intent of congress.”
Frankly, I don’t see how Congress could had made CALEA any more applicable than it is already.
— CALEA legalizes encryption;
— CALEA says that law enforcement can’t forbid the use of encryption; and
— CALEA says that law enforcement can’t specify how that encryption is designed.
Yet the FBI says, “(t)he statute does not address the particular issues before the court”?
CALEA doesn’t just “brush up” against the facts in this case. It meets them head on.
2.2.2. Not Comprehensive, But Piecemeal
In addition to arguing that CALEA is not applicable, the FBI also argues that CALEA is not comprehensive, and that the courts need to exercise their power under the All Writs Act in order to fill in the legislative gaps that CALEA has left unattended.
CALEA, passed in 1994, does not “meticulously,” “intricately,” or “specifically” address when a court may order a smartphone manufacturer to remove barriers to accessing stored data on a particular smartphone.
(T)his piecemeal legislation indicates Congress’s incremental approach to legislating in this area, rather than Congress’s intent to comprehensively legislate.
CALEA not comprehensive? Say what now?
There are, in fact, few areas of the law where Congress has provided more legislative guidance than they have with CALEA.
2.3. Legislative History
The courts have long held that where legislation exists, the All Writs Act does not apply. But the courts have also held that even failed attempts to legislate may be indicative of when the courts should, and should not, apply the All Writs Act.
(The All Writs Act) cannot be a means for the executive branch to achieve a legislative goal that Congress has considered and rejected. ~ Magistrate Judge Orenstein
The FBI disagrees, claiming that the courts should not draw meaning from congressional silence. ((In F.T.C. v. Dean Foods Co. , 384 U.S. 597, 600 (1966) ))
The applicable case law weighs heavily against the FBI’s position…
The government wrongly asserts that legislative intent can never be discerned from an absence of affirmative legislation. Although silence is sometimes a weak indicator of intent, it is a different story when Congress actively considers legislation to address a major policy issue, yet deliberately declines to enact it, see, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 600 (1983) ~ Apple Pleadings
… and CALEA, and the proposed CALEA II, were not instances of “congressional silence.” Far from it.
(F)or years … the Department of Justice and the (FBI) have urged this committee to give them the authority to mandate that companies create backdoors (but Congress has) so far refused. ~ Ranking Member John Conyers of the House Judiciary Committee
Nevertheless, the FBI persists in their claim that where legislation is absent, legislative intent cannot be discerned. Magistrate Judge Orenstein points out the logical absurdity of the FBI’s position:
(T)he government’s construction of the (All Writs Act) produces absurd results in application. If, for example the President sent to Congress a bill explicitly authorizing a court to issue the kind of order the government seeks here, and if every single member of the House and Senate were to vote against the enactment of such a law citing the kinds of data security and personal privacy concerns that Apple now embraces, the government would nevertheless describe the order sought here as permissible because Congress had merely rejected the bill – however emphatically, and however clear its reasons for doing so – rather than affirmatively passing legislation to prohibit the executive branch’s proposal. ~ Magistrate Judge Orenstein
With the rejection of CALEA II, Congress denied the FBI the very powers that they are now seeking to obtain from the courts.
Congress surely did not intend to allow parties specifically exempted by CALEA (such as Apple) to be subjected to it. The government fails to address this truism. ~ Apple Pleadings
The All Writs Act was not designed to give the FBI that which Congress had denied them.
Where a court issues an order “that accomplishes something Congress has considered but declined to adopt – albeit without explicitly or implicitly prohibiting it” that order is not agreeable to the “usages and principles of law.” In re Order, 2016 WL 783565, at *9. ~ Magistrate Judge Orenstein
2.4. Exempted Encryption
The FBI also insists that:
(T)he (FBI’s requested) Order does not dictate “any specific design”
Query: How exactly does an order mandating that Apple has to disable three of its security features ((1) Delay in inputing passwords; 2) Not erase data after 10 incorrect attempts; 3) Allow for the passcode to be rapidly input by computer, rather than by hand.)) not dictate “any specific design”?
The government’s assertion that the order does not dictate “any specific design,” is baseless given that the order commands Apple to design specific new software with specific capabilities. ~ Apple Pleadings
In their pleadings, the FBI scolds Apple for selfishly placing their business interests above the law:
Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data. ~ FBI Pleadings
The FBI has it exactly backwards. Under the aegis of CALEA, it is perfectly legal for Apple to create and market products that contain encryption. What CALEA made illegal was for the government to tell companies whether they could, or how they should, make encrypted products. Yet that is exactly what the oh-so-self-righteous FBI is attempting to do.
The Justice Department and FBI are seeking an order from this Court that would force Apple to create exactly the kind of operating system that Congress has thus far refused to require. ~ Apple Pleadings
Falling Down The Rabbit Hole
So, let’s recap. The FBI has denied that CALEA is applicable, denied that their failed attempts to expand CALEA should be taken into account, and denied that they, in defiance of CALEA, are dictating to Apple how they must design their encryption.
But it’s not enough for the FBI to show that CALEA doesn’t apply, they must also show that the All Writs Act does apply.
And now, like Alice of Wonderland fame, the FBI asks us to fall down the rabbit hole into a world of make believe and nonsense.
(CALEA) does not destroy any existing authority—or even speak to the courts’ power at all. ~ FBI Pleadings
Well, that’s not strictly accurate. Where CALEA applies, the All Writs Act does not.
But what exactly is the FBI driving at here? They seem to be implying that if Congress doesn’t specifically tell the courts that they CAN’T do a thing, then they CAN do that thing. Which is weird, because Congress doesn’t write laws and then say, “Oh, by the way, the Courts have no power to enable law enforcement to do what we’ve forbidden law enforcement to do.”
(CALEA) limits only the authority given to “law enforcement agenc[ies]” ~ FBI Pleadings
Whoa, whoa, whoa! Do you see where the FBI is headed here?
— First they say CALEA doesn’t apply to the Courts;
— Then they say CALEA only applies to law enforcement.
The alarming conclusion the FBI draws from these twin premises is:
— The Courts can use the All Writs Act to grant the FBI the power it seeks because Congress did not specifically prohibit the courts from doing so.
But wait, the FBI is not done yet. They then extend their train of thinking to its logical terminus:
— The Courts can use the All Writs Act to grant the FBI the power it seeks — even if Congress specifically denied the FBI that very selfsame power — because Congress did not specifically prohibit the courts from doing so.
The government thus asks me to read into the All Writs Act an empowerment of the judiciary to grant the executive branch authority to use investigative techniques either explicitly denied it by the legislative branch, or at a minimum omitted from a far-reaching and detailed statutory scheme that has received the legislature’s intensive and repeated consideration. Such a broad reading of the statute invites an exercise of judicial activism that is breathtaking in its scope…. ~ Magistrate Judge Orenstein
Under the FBI’s interpretation of the All Writs Act, CALEA simply does not matter. It’s irrelevant. Why? Because CALEA tells the FBI what they can and can’t do but it doesn’t tell the courts a damn thing. So the courts can do what they want, even if what they want is exactly the opposite of what Congress wants.
Well, I never heard it before, but it sounds uncommon nonsense. ~ Lewis Carroll, Alice in Wonderland
Through The Looking Glass
If the FBI’s interpretation of the All Writs Act is correct — and the courts can grant that which the legislature has denied — then you have to wonder:
— Why did the FBI even bother to ask Congress for the powers provided in CALEA?
— Why did the FBI go back to Congress and ask for more power in the proposed, but un-enacted, CALEA II?
— For that matter, if the All Writs Act has, since 1789, provided the courts with the authority to give the FBI the power it is now demanding — and the FBI assures us that it does — then why bother with Congress at all? Ever?
Curiouser and curiouser! ~ Lewis Carroll, Alice in Wonderland
And where exactly does the FBI’s interpretation of the All Writs Act leave Congress in the scheme of things? What is the sense of Congress passing a law that makes it clear that a manufacturer can develop the most secure product in the world, if the courts can then order that selfsame manufacturer to redesign the product to make it insecure whenever the government decides it needs access?
Like Alice, we’ve walked through the looking glass and emerged into an everted world where the courts have gained the power to legislate and the legislature has retained naught but the power to veto.
(The FBI is contending that) the (All Writs) Act can authorize any and all relief except… where Congress enacts a specific statute prohibiting the precise action…. ~ Apple Pleadings
This is, of course, utter nonsense.
It is wholly implausible to suppose that with so many of the newly-adopted Constitution’s drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document’s very first substantive mandate: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow. ~ Magistrate Judge Orenstein
The All Powerful All Writs Act
The worst thing about the FBI’s interpretation of the All Writs Act is that it has no limiting principle.
(G)iven the government’s boundless interpretation of the All Writs Act, it is hard to conceive of any limits on the orders the government could obtain in the future. ~ Apple Pleadings
If today the courts can compel Apple, against its will, to create a GovtOS that breaks encryption, then why can’t they demand a LocationTracingOS, or an EavesdropingOS, or a PhotoFaceRecognitionOS ((Selfie takers, beware!)) , tomorrow?
(W)hat is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user? Nothing. ~ Apple Pleadings
And why stop there?
(A)ccording to the government… the courts can order private parties to do virtually anything the Justice Department and FBI can dream up. The Founders would be appalled. ~ Apple Pleadings
Not just the founders. I’m pretty darn perturbed too.
The FBI vigorously disagrees with the assertion that there would be no limiting principle if their interpretation of the All Writs Act were to be adopted:
The Supreme Court’s approach to the (All Writs Act) does not create an unlimited source of judicial power, as Apple contends. The Act is self-limiting because it can only be invoked in aid of a court’s jurisdiction. Here, that jurisdiction rests on a lawful warrant, issued by a neutral magistrate pursuant to Rule 41. ~ FBI Pleadings
FULL STOP! Let’s parse the FBI’s reasoning, shall we?
The FBI is saying that the All Writs Act is self-limiting because it can only be invoked when a lawful warrant is issued.
A warrant. Issued by a Court. At the request of the FBI. Limits the Courts. From using the All Writs Act.
Sooooooo, if a Court doesn’t issue a warrant, then the Court is powerless to invoke the All Writs Act. Got it!
It’s like saying the courts are powerless to do a thing because they’d have to give themselves permission to do the thing before they’d be authorized to do the thing.
Yeah. That the FBI’s definition of “self-limiting”. ((Just as an aside, I’d be willing to bet that the FBI think’s their powers are “self-limiting” too.))
What the FBI is doing here is using legal alchemy in an attempt to transmute the innocuous All Writs Act into an all powerful all surveillance act.
The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is. ~ Apple Pleading
When Magistrate Judge Orenstein was confronted with the FBI’s interpretation of the All Writs Act in a legally identical, but factually distinguishable case, he was having none of it.
(The FBI’s) preferred reading of the law — which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it — would transform the (All Writs Act) from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress’s superior ability to prohibit or preempt.
I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction.
Is Judge Orenstein’s ruling binding on other Courts? No. But the ruling has to be taken into account whenever other courts are confronted with the same question, and its reasoning may prove persuasive.
What? We’re not done? No. Of course not.
There are many, many legal issues involved in this case but, in my opinion, the two biggest, and the two most immediate, legal stumbling blocks that the FBI must hurdle are 1) CALEA; and 2) Whether the FBI’s demands of Apple are “unduly burdensome” under the terms of the All Writs Act. And before we can address whether the FBI’s requests are burdensome or not, we must first determine whether this matter is about one phone, one time, or if it is, instead, about many phones, any time.
Until next week.