Alex Kreilein, Co-founder & CTO, SecureSet, & Austin Chambers, Attorney, Lewis, Bess, Williams & Weese
On February 16, 2016, the United States District Court for the Central District of California issued an order that required Apple to assist the FBI in the search of the iPhone used by one the the San Bernardino shooters. The Order requires Apple to comply with an FBI demand that Apple build and install software disabling the countermeasures on the iPhone 5c running iOS 9 that wipe the iPhone after 10 failed passcode attempts. The device belonged to the San Bernardino County Department of Public Health, which has given the government permission to search the phone.
The FBI in this specific circumstance is not requiring that Apple unlock this iPhone. In this circumstance, the FBI is also not requiring Apple apply a new form of cryptography to this or other iPhones (we’ll get to this later). However, the FBI is requiring that Apple develop and install software on this iPhone to allow the Bureau to run possible passcode combinations until the phone unlocks without fear of triggering the security countermeasures that erase data on the device automatically.
The legal arguments behind the Apple v. FBI1 case are the subject of intense scrutiny, although despite that scrutiny, the case itself is regularly mischaracterized. One side alleges the FBI is desperately seeking precedent necessary to unlock millions of devices through one of any manner of doors using only the antiquated All Writs Act of 1789 (“AWA”) as the key. Meanwhile the other side alleges Apple is preventing access to just a single phone—one belonging to a dead ISIS terrorist, no less—in what amounts to nothing more than a twisted marketing ploy. We believe both characterizations factually miss the mark, and in so doing, obscure the ramifications of the case itself.
The outcomes of this matter depend heavily on how the court interprets the powers and limits of the AWA. Apple raised interesting First and Fifth Amendment arguments, however, these are less likely to be deciding factors in the case, so we will leave those for others to assess. Ultimately, the court must decide two fundamental questions: Is the AWA applicable to this case, and if so, would the AWA allow a court to order Apple to create a new, but insecure, version of iOS?
Does the AWA apply?
The AWA was passed as part of the Judiciary Act of 1789, the same act that created the U.S. federal court system. The AWA provides that courts may issues all writs—or orders—that are necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. In other words, courts can issue writs to “fill gaps” as necessary to give effect to various aspects of the judicial duties. The AWA appeared early in U.S. judicial history, even playing a part in the case Marbury v. Madison, a landmark case forming the basis for the exercise of judicial review. In the time since, it has been used in cases ranging from requiring custodians to bring a prisoner to court for their own appeal (filling a gap in the traditional writ of Habeas Corpus) to compelling phone companies to place a pen register on a phone line. Thus, the AWA has been both hero and villain in vindicating the constitutional rights of defendants, while also giving rise to contentious expansions of courts’ constitutional authority.