In a 50-page opinion issued on February 29, 2016, U.S. Magistrate Judge James Orenstein sided with Apple in its high-profile fight with the federal government over whether Apple can be compelled to write software allowing authorities to bypass an iPhone’s security features. Judge Orenstein’s opinion is the first comprehensive judicial analysis of the government’s authority under the All Writs Act in this context. While the decision is not binding in other jurisdictions, it may be influential as courts around the country consider the 80 similar requests pending against Apple, most notably in California, where a federal judge is considering the government’s request to compel Apple to provide access to the iPhone of San Bernardino shooter Syed Farook.
Legally, the case turns on the All Writs Act, a 1789 statute which provides “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.” In short, it allows a court to compel individuals or corporations to give aid in executing its orders. For example, in United States v. New York Telephone Co., 434 U.S. 159 (1977), the Supreme Court ruled the All Writs Act allowed a U.S. District Court to order a telephone company assist law enforcement in installing a device on a rotary phone to track the numbers dialed. More recently, it has been used to provide the authorities access to password protected devices, requests that were regularly granted by tech companies, including Apple. Apple’s recent reversal is largely due to the robust security of its new iPhone operating system, which is more difficult to disable.
In siding with Apple, Judge Orenstein found the All Writs Act did not apply in this context, suggesting that it fell to lawmakers to resolve this issue, writing “it would betray our constitutional heritage and our people’s claim to democratic government for a judge to pretend that our Founders already had that debate, and ended it, in 1789.”He further noted that this ruling was not about whether the government was entitled to “force Apple to help it unlock a specific device… [but] whether the All Writs Act resolves that issue and many others like it yet to come.” Finally, Judge Orenstein suggested that there was no reason the government could not attempt to bypass the security itself.
The text of the law aside, increasingly complex encryption on smartphones and other devices raises policy issues on privacy and security that are both far reaching and compelling. The government rightly argues that it has a real and valid interest in accessing individual’s devices in criminal cases and matters of national security, particularly where acting pursuant to a judicially issued search warrant. At the same time, however, tech companies like Apple have equally valid concerns about protecting the privacy of their customers, whether from government overreach, hackers, or simply on the principle that privacy is a constitutional right. What makes this issue so fascinating is the need to balance these equally important considerations, and the uncertainty about where the middle ground might be. For more on the policy considerations, you can read this excellent article on Bloomberg regarding the pending case in California, in which dozens of amicus briefs have been filed by groups across the ideological specttrum: http://www.bloomberg.com/news/articles/2016-03-03/apple-supporters-weigh-in-from-big-tech-to-a-terror-victim
Though none of these cases has reached final disposition, it seems inevitable that this issue will one day come before the Supreme Court, and given his strong views on privacy and the right to be free from government search, there may be no issue on which the late Justice Scalia’s voice will be more greatly missed.