Vail Daily column: Apple and the All Writs Act
Editor’s note: This column was written before the FBI announced Monday that it had “successfully accessed the data” on the iPhone of the San Bernardino killer.
What’s old is new again.
As you may know, there is an ongoing tug of war between the FBI and Apple. It revolves around the San Bernardino terrorist attack of last December. It seems the religious fundamentalists who caused the bloodletting in the name of a very old theological construct relied, in part, upon the very modern device of a mobile phone to help carry out their murderous design. And to help untangle the web of connections and support that may have facilitated the killers, the FBI would like to crack the seized iPhone that the terrorists employed.
The problem is, an iPhone is apparently a very tough nut to crack.
To assist with the cracking, the FBI has asked Apple to craft a bit of code that will help unlock the privacy features of the phone. While the FBI asserts that its interest extends only to this phone — and that the issue is one of national security — Apple has asserted that the key the FBI has requested will, instead, unlock a veritable Pandora’s box, that, once crafted, could be exploited to wheedle into any iPhone. And in so ingratiating itself, the FBI would threaten, rather than protect, each of our personal security.
Privacy advocates have lined up behind Apple while some law-and-order types have sided with the feds.
One interesting aspect of this fascinating dilemma is how the FBI might try to compel Apple in the courts to cough up the coveted code. And this is where the All Writs Act comes in.
You might understandably be asking yourself just what a writ is. Fair ’nuff. A quick diversion is in order.
A writ may be defined as “a formal order under seal, issued in the name of a sovereign, government, court or other competent authority, enjoining the officer or other person to whom it is issued or addressed to do or refrain from some specified act.” Whoa. Parsing this out into plain English, a writ is an order issued by a court that orders someone to do some specific thing. A writ of habeus corpus for example is an order to a person (a warden for example) ordering him to deliver an imprisoned person to the court. And yes, “writ” is derived of the same root as “written.”
So a writ is an official command to do — or not do — something issued by the court. It is, in short, a formal order.
The particular writ with which the FBI and Apple are wrestling is the All Writs Act and, as laid out in the first line of this column, it is dodderingly old. In fact, it is nearly as old as the nation itself and came into being at the same time as the federal courts themselves appeared. At 227 years old, it has suddenly been bestowed fresh legs.
Part of the Judiciary Act of 1789, the All Writs Act provides, in full 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.
• An alternative or “rule nisi” may be issued by a justice or judge of a court which has jurisdiction.
A rule nisi is a court order that does not have any force unless a particular condition is met. Generally, a rule nisi is an order “to show cause,” meaning that the ruling is absolute unless the party to whom it applies can show cause why it should not apply.
OK. So what’s all the fuss?
It’s this; the All Writs Act gives courts the power to issue orders that do not fall under any preexisting law. It provides the courts with a sort of Leatherman-like procedural tool for dealing with odd and varied creatures of law that have not yet been dealt with or covered by other laws. In legal-speak, it deals with matters casus omissus, or things left out.
This power clearly made sense before all the holes in the young foal of the legal system were fully fleshed out. But some say, now … well, not so much.
While old and crotchety, the law still, from time-to-time, has legs. In a 1977 case, the court obliged a telecom company to aid in the surveillance of a racketeering sting. But the facts were different there. What the court ordered was for the telecom company — which already had a statutory duty to serve the public — to employ existing technology to help the government crack its case. Here, Apple is a purely private company and what the FBI is seeking is to compel it to take an affirmative act to create software for use by the government to help it map out the connections to a crime.
The battle lines are being drawn.
If the court sides with the government, critics fear a dangerous and intrusive precedent will be set and that such a ruling that will embolden governmental agencies to seek courts in the future in order to compel tech companies’ proactive cooperation, even if so doing opens up security backdoors to their products. What’s more, a whiff of big brotherism prevails over what some characterize as a potentially Orwellian new world.
What’s old is new again.
But the rabbit hole into which this all may lead remains wholly and perhaps frighteningly unexplored.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, email@example.com or firstname.lastname@example.org.