In December 2015, Syed Rizwan Farook and his wife, Tashfeen Malik, went on a shooting rampage at Farook’s San Bernardino workplace. The FBI wants access to data stored on Farook’s work-issued iPhone 5c. Farook’s iPhone is password protected. The FBI convinced a court to issue a writ, under the All Writs Act, compelling Apple to create a new operating system that could be downloaded to the phone in order to remove certain protections so that the FBI might “brute force” its way into the locked iPhone by rapidly entering numbers until the correct passcode was discovered.
The case is barely three weeks old, yet already, there have been a flood of legal pleadings, amicus curiae (friend of the court) briefs, letters to the court, not to mention numerous impassioned press releases. Further, there is a 50 page order from a court in New York denying the FBI’s claims against Apple in a legally similar, yet factually distinguishable, case.
I have read every word of the above so you don’t have to. You’re welcome.
The issues involved in this case are numerous and complex.
(The) case is like a crazy-hard law school exam hypothetical in which a professor gives students an unanswerable problem just to see how they do. ~ Orin Kerr, professor at George Washington University Law School
So very many words have been written already, and so very many issues have been raised in regard to this matter, that I thought it might be helpful to create a “flow chart” that would provide some structure and help us to understand the order in which these many issues are going to be considered and resolved. So let’s get started.
This matter can roughly be divided into five stages:
— Things that look interesting, but that don’t really matter
— Legislative (Policy)
Let’s take a brief look at how each stage matters and how the stages will flow, one into the other.
Stage 1: Things That Don’t Really Matter
FLOWCHART: Skip stage 1, proceed directly to stage 2.
There are many, many speculative issues swirling in, out and around this case that are utterly fascinating to talk about…but which, in the long run, won’t matter a hoot. Some examples are:
— There’s nothing of interest on the phone and the FBI knows it. Doesn’t matter.
— The FBI could have gained access to the contents of the phone through a variety of methods that didn’t require Apple’s assistance. Doesn’t matter.
— The FBI was either incompetent or they deliberately changed the iCloud user name on the Phone so that iCloud backups could not be used, thus forcing the current legal case. Doesn’t matter.
— The All Writs Act is old. Doesn’t’ matter. (The Constitution is even older and we still consider it to be relevant.)
— The government could not get what they wanted from the legislature, so they are trying to use the All Writs Act as a vehicle for allowing the courts to grant them the power that the legislature denied them. Doesn’t matter.
I’m sure that I have missed a dozen more interesting, but ultimately unhelpful, issues.
Instead of focusing on what doesn’t matter, it’s best to focus our attention on those issues that matter and matter most.
Stage 2: Legal
All sorts of miscellaneous legal issues have been discussed in the press, but it all comes down to this:
Can the Courts order the relief the FBI is requesting using only the authority conferred under the All Writs Act?
UNDERSTANDING THE ALL WRITS ACT (AWA)
To answer that question, the first thing we need to understand is what the All Writs Act is, what it does and what it doesn’t do. Briefly, the All Writs Act was an act passed by the first congress, after the passing of the constitution, but before even the adoption of first ten amendments, now known collectively as the Bill of Rights. So it’s old, yes, but it also keeps venerable company. (((T)he AWA was enacted the same week that Congress proposed the Fourth Amendment. The Judiciary Act of 1789, which included the AWA, was signed into law by George Washington on Sept. 24, 1789. The next day, on Sept. 25, Congress passed a joint resolution proposing the Bill of Rights that included the Fourth Amendment. In my experience, those who say the AWA is too old to be relevant also tend to believe that the Fourth Amendment should be interpreted expansively in our technological age. But it’s not obvious why one ages like a fine wine while the other ages more like milk. ~ Orin Kerr, professor at George Washington University Law School))
The All Writs Act is designed to allow the courts to use the power they already possess in order to fill in any procedural gaps necessary to implement existing law. The FBI argues that the All Writs Act gives the courts — as it has many, many times before — the power to compel a third-party to assist law enforcement. Apple argues that what the court is demanding — the creation of new software — is not a case of the courts filling in a “gap” between existing legislation, but rather a case of the courts granting themselves a wholly new power authorized neither by the legislature or the constitution.
CALEA is the acronym used to describe the Communications Assistance for Law Enforcement Act. CALEA matters to us for five reasons. First, where the legislature has spoken, the All Writs Act 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. ~ The U.S. Supreme Court, Pennsylvania Bureau of Correction v. U.S. Marshals Service, 474 U.S. 34, 43 (1985)
Second, CALEA directly addresses the question of encryption. Third, CALEA covers certain telecommunications companies but it specifically excludes companies like Apple. Fourth, the FBI tried, and failed, to extend CALEA to cover companies like Apple and to broaden the scope of the FBI’s control over the encryption made by those companies. Fifth, and finally, under CALEA the government cannot prohibit a company from using encryption, nor can they tell a company how their encryption must be designed.
Apple argues that CALEA is comprehensive and that there are no “gaps” for the All Writs Act to fill. The government argues that CALEA is old, out of date, ((It’s a little ironic that the FBI thinks the 227 year old All Writs Act is perfectly applicable to this matter, but the 22 year old CALEA is not applicable because it’s old and out of date.)) a hodgepodge of rules that do not comprehensively cover the issues at hand, and that the All Writs Act was created to create remedies, like the one currently being requested by the FBI, when no other remedy was available.
Even if CALEA, does not preclude the Courts from Applying The All Writs Act, the FBI still has to show — based upon case law interpreting the proper and appropriate usages for the All Writs Act — that their requests would not be “unreasonably burdensome.” ((United States v. New York Telephone.))
The government argues that Apple is a company valued at well over 200 billion dollars, and that it can easily spare the services of the 6 to 10 engineers for the 4 to 6 weeks that Apple has estimated the demanded task will require.
Apple argues that the short-term costs in terms of reputation, brand, customer loyalty and bottom line profits are far more extensive than the mere cost of losing some of their finest engineering talent for a finite period of time.
Further, Apple argues that the long-term damages are far more costly, and the consequences far more severe, than the FBI is willing to acknowledge. Apple would be creating software that was antithetical to their business purposes; software that hurts their customers by weakening security; software that would turn a part of Apple into a permanent FBI forensic laboratory. Further still, similar demands from the FBI, other government agencies and, eventually other foreign powers, would be virtually endless. Perhaps most importantly, allowing the All Writs Act to be interpreted in the manner desired by the FBI would allow the FBI to endlessly broaden the scope of its demands upon Apple, and others, in the future.
Apple’s last set of claims are all future oriented and only valid if this case does not just involve one phone, one time, in one case, but is a precedent that will be made applicable to all phone makers, and all phones made, going forward. This is why both Apple and the FBI are fighting so bitterly over the question of whether this case is about merely one phone or whether it is about setting a lasting legal precedent.
FLOWCHART: Go to stage 3
Stage 3: Legislative
I want to make one thing very, very clear. When I’m talking about the FBI not being granted the kind of investigative powers that they’re demanding, I’m talking about being unable to get them from the COURTS using the ALL WRITS ACT. That does not, in any way, preclude the FBI from getting what they want by obtaining a new LAW from the LEGISLATIVE Branch. What the Courts can’t or won’t grant to the FBI, the legislature can and may. After the courts have made their decision — and even before the courts have made their decision — the FBI can turn to the Legislature for relief. In fact, the legislative battle is well begun.
— Press releases designed to sway public opinion are issued on a weekly, and sometimes on a daily, basis.
— The Senate has already started congressional hearings on the matter.
— The French legislature has already voted on legislation that affects this matter and which may dramatically and unalterably change the terms of the debate.
FLOWCHART: Go To stage 4
Stage 4: Constitutional
Once Congress has crafted new legislation — and that may occur within months or it may take years — it will have to undergo Constitutional scrutiny. Since the legislation has not even been drafted yet, it is impossible to know what Constitutional challenges such legislation may face or how it will fare in overcoming those constitutional challenges. We can be confident that there will be First Amendment (compelled speech), Fifth Amendment, and perhaps even Thirteenth Amendment (involuntary conscription) issues, but everything else is speculative at this time.
FLOWCHART: Game not over. Go to stage 5
Stage 5: Technological
Stage 5 is the conditional “if-then” statement of our flow chart.
I believe that it is a certainty that Apple is closing the technological loophole (system updates without the phone owner’s knowledge or permission) that the government is attempting to use in the San Bernardino case. It’s only a matter of “when” not “if”. And when it happens, access to future iPhones will be beyond the reach of the All Writs Act and the FBI’s only recourse will be to obtain legislation demanding that Apple not make unbreakable encryption and instead always create a vulnerability in their encryption specifically designed to allow the FBI easy access to the contents of any iPhone, upon demand.
In other words, technology is going to clear the table and reset the game. Almost everything that has gone on before will become moot. ((Lawyers do so love to use the word “moot” and we so seldom get the opportunity to use it in its proper context.))
FLOWCHART: If (when) encryption improves, then go to stage 1.
The parties to this case are in it for the long run. It’s going to be a marathon, not a sprint.
Tomorrow, I will focus strictly on the legal aspects of the current cases and project who the winner may be.
Author’s Note: This article is part 1 of 2. Part 2 was going to dive into the Legal issues involved in this case since the legal issues are the ones that will most likely be decided first and foremost. I had intended to publish part 1 on Saturday and part 2 on Sunday. However, the FBI issued a 30 plus page reply to Apple late on Thursday afternoon and much of the material in the FBI’s pleading covers the very same legal questions that I was addressing in my article. I decided that it wouldn’t make sense to publish an article that didn’t integrate these pleadings into the discussion, so I am delaying my second article until I have had time to do that. When it’s done, the article will focus on:
1) Defining the scope and limitation of the All Writs Act;
2) Whether CALEA precludes the use of the All Writs Act; and
3) Whether the FBI’s request is “burdensome” as defined by the case law defining the All Writs Act.
In addition, I fear that I must also specifically address the question of whether this case is focused on just one phone or whether it is precedent setting. Normally, I would reserve examination of this question for the Constitutional issues, but it is directly relevant to the question of whether or not the FBI’s request is burdensome under the terms of the All Writs Act.
Author’s Query: I am most definitely going to write the second article in this series, but I would like to know whether you want to hear more about FBI v. Apple, or whether you are suffering from legal overload and would prefer that I return my attention to more business centric issues. Let me (gently) know in the comments, below.