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EncryptionApple versus FBI: All Writs Act’s age should not bar its use

By Ronald Sievert

Published 4 March 2016

A federal magistrate judge in California has issued a warrant ordering Apple to assist the FBI in accessing data on an iPhone used by a suspect in the December 2015 San Bernardino mass shooting. Apple’s public refusal to comply with the order – and its motion asking a judge to reverse the order – have set up a legal showdown that has captivated the technology world. It’s hard not to think that marketing and economics are at least somewhat behind Apple’s actions. But my guess is most people understand that the FBI would not be getting into their phones without a probable cause search warrant. In addition, I would think Apple would not want to have a market composed of people who want to use iPhones for dangerous and illegal activity. The company might actually lose more future customers because of its uncooperative attitude than it would ever lose by helping the government by complying with a court order.

A federal magistrate judge in California has issued a warrant ordering Apple to assist the FBI in accessing data on an iPhone used by a suspect in the December 2015 San Bernardino mass shooting.

Apple’s public refusal to comply with the order – and its motion asking a judge to reverse the order – have set up a legal showdown that has captivated the technology world. The public debate centers around privacy, encryption, and electronic security.

The warrant issued to Apple is backed by the All Writs Act, a 1789 law signed by President George Washington that gives courts broad power to issue orders for which there is no other specific statute – as long as it is consistent with the usages and principles of law.

The age and sweeping scope of the law has attracted criticism and praise alike.

In my view as a former federal prosecutor, the use of the All Writs Act here is nothing really novel – even if it does date back to 1789. All it says is that the courts can issue an order for which there is no other specific statute as long as it is consistent with the usages and principles of law. And the act itself was actually reenacted in the early 1900s and updated in 1948.

Seeking help collecting evidence
To collect evidence, normally the government uses a search warrant – which is authorized under a specific provisionof the Federal Rules of Criminal Procedure. In the San Bernardino case, the government has a court’s permission to examine the contents of the phone – but the phone is encrypted by a passcode only the user knew, and he is dead.

To gain access to the phone’s contents in a reasonable and practical way, the court must get Apple to remove security features of the iPhone’s operating system that limit the government’s ability to crack the encryption. There is no specific statute that requires companies to perform this exact task in so many words. In this case, however, that task is consistent with the search warrant, so the court is just using the All Writs Act to order the company to help the authorized search happen by opening up the phone.