John Villasenor is professor of electrical engineering, public policy and management at UCLA and a nonresident senior fellow at the Brookings Institution. This column appeared Feb. 21 on Forbes.
As many people are well aware, on Feb. 16 a U.S. magistrate issued an order compelling Apple to assist the government in bypassing the security features of an iPhone 5C used by one of the perpetrators of the December 2015 San Bernardino attack. Apple responded with a strongly worded statement from CEO Tim Cook calling the order a “dangerous precedent,” and is expected to file its formal opposition with the court by February 26.
Here, in no particular order, are some of the key points of dispute that are likely to be argued as this plays out:
1. Whether the All Writs Act applies
The Feb. 16 court order asserts that the All Writs Act, which dates from 1789, provides the authority to compel Apple’s assistance. That act states 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.” The scope of the government’s authority under the All Writs Act is unclear (see Orin Kerr’s very good discussion on that topic here), as it has never been fully tested in a case with a fact pattern like this one. But there are some Supreme Court decisions that are nonetheless highly relevant.
In 1977 the Court ruled in United States v. New York Telephone, a case involving government attempts to use the All Writs Act to force the New York Telephone Company to help the FBI install a “pen register” to track (but not record) telephone calls associated with suspects in an investigation regarding illegal gambling.
Unlike today, in 1977 there was no statute addressing the installation of pen registers. (That changed with the 1986 enactment of the Electronic Communications Privacy Act, which included a section addressing “pen registers and trap and trace devices.”) In the absence of any specific statutory authority, the Court was left with the question of whether the All Writs Act applied. The Court found that it did, holding that while “the power of federal courts [under the All Writs Act] to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed . . . the order issued here against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress.”
Another important case is Pennsylvania Bureau of Correction v. United States Marshals Service, a 1985 Supreme Court decision involving a dispute related to transporting state prisoners. In that ruling, the Court wrote that the “All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.”
So does the All Writs Act apply in the Apple/FBI matter? Apple will almost certainly argue, as it did in a related dispute with the government in October 2015, that it does not. In its October filing in that other case, Apple raised the Communications Assistance to Law Enforcement Act (CALEA), a 1994 law that requires telecommunications carriers to design their networks and services so that the government, “pursuant to a court order or other lawful authorization,” can intercept communications. Why does this matter? Because in identifying the assistance that “telecommunications carriers” are required to give the government, CALEA specifically excludes providers of “information services.”
Apple services like iMessage and iCloud are very clearly “information services” as defined in CALEA. Thus, Apple will likely take the position (as it did in October 2015) that in CALEA Congress made an affirmative choice to exclude companies like Apple from being compelled to assist the government. Therefore, the logic will continue, it is improper for the government to invoke the All Writs Act to attempt to restore an obligation to provide assistance that Congress specifically considered and rejected when drafting the provisions of CALEA. The government knows this argument is coming: It wrote in its Feb. 19 Motion to Compel that “Apple is not acting as a telecommunications carrier” and that “CALEA is entirely inapplicable to the present dispute.”
An underlying challenge is that the definitions in CALEA reflect the technology landscape in 1994, a time when the distinction between “telecommunications carriers” and companies providing “information services” was much clearer than it is today. For an example of how the lines have blurred, consider the voice mail services now offered by many telephone communications providers. Those services enable “storing . . . retrieving, utilizing, or making available information via telecommunications,” and therefore meet the CALEA definition of “information services.” Yet it would be a stretch to argue that just because such a company offers voice mail services, it is no longer a “telecommunications carrier.” The bottom line is that the CALEA question isn’t easy to answer, and the court will face a challenging task in trying to map a set of technology-specific statutory definitions from 1994 to Apple in 2016.
2. If the All Writs Act does potentially apply, whether the court order presents an unreasonable burden
Suppose that the court concludes that CALEA doesn’t render the All Writs Act inapplicable to this case. A key subsequent question is whether complying with it would subject Apple to an unreasonable burden. That language comes from the New York Telephone ruling in which, as noted above, the Court held that “unreasonable burdens may not be imposed.”
The government has anticipated that argument, writing in its Febr. 19 Motion to Compel that “[w]here, as here, compliance with the order would not require inordinate effort, no unreasonable burden can be found.” But that statement is circular, logically incomplete, and unsupported. It is circular because any reasonable definition of “unreasonable burden” would encompass tasks requiring “inordinate effort.” It is logically incomplete because “unreasonable burden” might include other factors beyond “inordinate effort.” And, it is unsupported because the government provides no substantive basis for its assertion that Apple’s assistance would notimpose an unreasonable burden.
There are plenty of reasons to think the effort might be quite high, especially given the care that Apple has taken to provide the very security that the government is now asking it to undermine. But until we hear more from Apple on this topic, it’s difficult to draw too many conclusions on the burden Apple would face, and therefore on how that burden would impact the use of the All Writs Act.
3. Whether the government’s order for Apple to create new software constitutes unconstitutional compelled speech
Another argument relates to the First Amendment. After all, in addition to providing protection against restraints on expression, the First Amendment protects against compelled expression. As far as I can tell, Apple hasn’t yet formally raised this argument. But it could, and I expect that it will, particularly given that it has hired two prominent constitutional law experts, Theodore Boutrous and Theodore Olson, to join its legal team.
Software is (with some important potential exceptions) subject to copyright protection — which is relevant because the tie between copyrightable subject matter and expression is explicit in U.S. copyright law: Copyright protects “original works of authorship fixed in any tangible medium of expression.” Expression, in turn, is protected under the First Amendment. Thus, when a person writes new software (again, subject to some exceptions), he or she is engaging in an expressive act. But what about when a corporation such as Apple writes software?
Whatever you think of the Supreme Court’s 2010 Citizens United v. FEC decision in the context of political campaigns, it offers strong support for Apple in the present matter. Citizens United provided a ringing endorsement of the concept that First Amendment rights extend to corporations. Backed by that ruling, Apple could argue that being forced to spend what could be many person-months creating new software to perform a specific, government-mandated task amounts to unconstitutional compelled speech.
One potential counterargument involves citing examples of compelled corporate speech — e.g., mandatory ingredient labels on food products and warning labels on tobacco products — that aren’t viewed as unconstitutional. But that doesn’t strike me as a strong counterargument, in part because the amount of expression concerned in the Apple matter is potentially so much more extensive.