The FBI is basing its demand that Apple help hack into an encrypted iPhone on a little-known 18th century law that critics say is being badly abused.
A federal judge this week ordered Apple to help open up a phone that used by one of the killers in the San Bernardino, Calif., terrorist attack. Apple has refused to comply.
The request has stirred a vigorous national debate and raised new questions about the scope of the more than 200-year old law.
“The problem with what’s happening in this case is that it’s purporting to make a very big change in the law by one judge under a 1789 statute,” said Sen. Angus KingAngus KingUnder pressure, Dems hold back Gorsuch support Senate intel panel has not seen Nunes surveillance documents: lawmakers GOP rep scolds Gillibrand for tearing into Marine general over nude-photo scandal MORE (I-Maine), a member of the Senate Intelligence Committee who caucuses with Democrats, in an interview on NPR on Friday. “This court case is a kind of shortcut around the public policy process.”
"This is a really tough issue,” he added. “I can argue it either way. To decide it in this case is just, I think, the wrong approach.”
“I think they should have come to the Congress with a proposal to debate the issues rather than go to court.”
The law, called the All Writs Act, allows federal courts to issue orders that fill the gap in between laws.
As the government noted in a filing on Friday, courts have previously used the law to force phone companies to employ wiretapping devices, get customer data from a credit card company and require a landlord to give up security camera tapes
It’s also been used to get Apple to hand over information from people’s locked cellphones. In fact, Apple has complied with previous demands under the All Writs Act at least 70 times, a government lawyer claimed last year in a similar case in New York.
“The use of the All Writs Act to facilitate a warrant is therefore not unprecedented; Apple itself has recognized it for years," the Justice Department claimed in Friday's filing.
“Until last year, Apple did not dispute any such order.”
But the facts surrounding the San Bernardino case are different.
In this case, a federal court has ordered Apple to build new software enabling the FBI to quickly guess an infinite number of passwords to access data on the phone of Syed Rizwan Farook. Farook, along with his wife, killed 14 people last December.
The court orders Apple to circumvent measures slowing down someone’s ability to guess wrong passwords as well as a self-destruct feature.
“What’s raising a lot of concern is the fact that the application asks Apple to write custom software to disable a feature, as opposed to asking Apple to turn off a switch that it’s already got built into the system,” said Ahmed Ghappour, a professor at the University of California Hastings College of Law.
The court’s demand could turn into a slippery slope, worried American University law professor Stephen Vladeck.
“It’s pretty unprecedented for a court to use the All Writs Act to compel a third party to expend such resources, and take such involved steps, in a case like this,” Vladeck wrote in an email to The Hill on Friday. “And it begs the question of what a court _couldn’t_ order under the All Writs Act, in an appropriate case.”
Apple has until next week to file a formal objection to the order, claiming that it is “unduly burdensome.”
It is believed to be technologically possible for Apple to do what the court has demanded.
However, the company is expected to argue that process would be a devastating blow to its image around the world. That’s partly the argument Apple made last year, when faced with a similar — though lower profile — case in New York that has yet to reach a conclusion.
“Forcing Apple to extract data in this case, absent clear legal authority to do so, could threaten the trust between Apple and its customers and substantially tarnish the Apple brand,” it said at the time. “This reputational harm could have a longer term economic impact beyond the mere cost of performing the single extraction at issue.”
In an open letter this week, CEO Tim Cook also warned that following through with the order would set “a dangerous precedent.”
“The implications of the government’s demands are chilling,” he wrote. “If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data.”
On Friday, the government appeared to issue a prebuttal to those claims.
“Modifying an operating system … is not an unreasonable burden for a company that writes software code as part of its regular business,” the Justice Department said.
Apple “is not above the law,” it added.
“This court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company — complying with a lawful court order — could be obviated because that company prefers to market itself as providing privacy protections that make it infeasible to comply with court-issued warrants.”
Apple is hunkering down for the long haul.
Court documents this week show that the tech giant has retained Ted Olson — who successfully argued Supreme Court cases over the 2000 presidential election and same-sex marriage — for help in the matter.
The fight could reach all the way to the Supreme Court.
In the meantime, Congress will be under pressure to assert its role.
Lawmakers have repeatedly rejected new efforts to put limits around companies’ ability to employ encrypted communications, but they are likely to revisit the issue now.
On Friday, lawmakers in the House Energy and Commerce Committee invited Cook and FBI Director James Comey to testify about “the issues presented by the ongoing debate related to encryption technologies.”
Sens. Richard BurrRichard BurrSchumer: Trump must apologize for wiretapping claim Senate panel asks Trump ally Roger Stone to preserve Russia-related records Senate Intel Committee sets hearing on Russian election interference MORE (R-N.C.) and Dianne FeinsteinDianne FeinsteinDems get it wrong: 'Originalism' is mainstream, even for liberal judges Human rights leaders warn against confirming Gorsuch Feinstein sees slipping support among California voters: poll MORE (D-Calif.) — the bipartisan heads of the Senate Intelligence Committee — have been some the most vigorous backers of new legislation on encryption, and indicated this week that they will take up the effort with new verve.
The debate promises to be heated.
“At the moment, we are far from any consensus," Rep. Adam SchiffAdam SchiffIntel chair won't reveal source on Trump team surveillance to panel's top Dem Overnight Cybersecurity: House Intel chief regrets briefing Trump before panel | WikiLeaks drops new CIA docs | Pentagon worried about Chinese investments By briefing White House, Nunes plays Trump's wiretapping game MORE (Calif.), the top Democrat on the House Intelligence Committee, said in a statement, "but the court's decision will likely accelerate our consideration of how to weigh the competing privacy, security and competitiveness issues."