Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how the legal fight between Apple and the federal government over unlocking an iPhone has major implications for privacy and law enforcement.
THE STATEMENTS AT ISSUE:
“[During the FBI’s investigation of the mass shooting in San Bernardino], we’ve handed over all the data we have, including a backup of the iPhone in question. But now they have asked us for information we simply do not have.”
– Excerpt from an Apple, Inc., statement on February 16, providing answers to questions about Apple and the security it builds into its smartphones – a technology lock that the FBI is now seeking to have Apple open in order for technicians to search for potential contacts the San Bernardino shooters may have had with other terrorists.
“Apple has stated that, to comply with the government’s proposed [search] order, Apple’s security engineers would have to write software specifically designed to disable the security measures those engineers built into the phone….If the government prevails, then this case will be the first of many requiring companies to degrade the security and to undermine the trust in their products so essential to privacy in the digital age….The order the government seeks would violate the Constitution.”
– Excerpt from an American Civil Liberties Union legal brief filed on March 2 in a federal court in California, where the judge is pondering the FBI request to compel Apple to provide the means to unlock the iPhone seized by government agents after the San Bernardino shooters were killed.
“Our policy on encryption is clear. The United States government firmly supports the development and robust adoption of strong encryption, which is a key tool to secure commerce and trade, safeguard private information, promote free expression and association. At the same time, encryption poses a grave challenge for our national security and law enforcement professionals.
– Excerpt from a statement by the White House on March 4, as reported in The New York Times on March 5. The statement apparently was issued in response to questions by Times reporters about reported disagreements within the government over how to deal with the Apple controversy.
WE CHECKED THE CONSTITUTION, AND…
It is pure fantasy to assume that those who wrote the Constitution in the late 18th Century could have imagined the smartphone, and the threat that the digital forms of communication could pose to individual privacy. But in 1789, in the first Congress after the basic document was ratified, Congress wrote a law that the Federal Bureau of Investigation – in the 21st Century – is relying upon to enable it to get inside a locked smartphone that belonged to one of the shooters in the massacre in San Bernardino on December 2; the phone was found in the van in which the shooters were killed by police.
The law is the All Writs Act. Unchanged in any significant way since it was first passed as part of the Judiciary Act of 1789, the law now reads: “The Supreme Court and all courts established by an 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.” It is a kind of catch-all law, filling gaps in court powers that are not filled by other federal laws.
Depending upon who is talking about the deepening controversy between the FBI and Apple over the San Bernardino smartphone, the government is making only a limited demand, for this case only, for some civic-minded cooperation to help track dangerous terrorists, or the government is making an unprecedented demand to a private business to force it to create a technology that does not currently exist in order to get information from a phone that the company no longer has in its possession containing information that the company did not generate.
The government’s arguments so far have been rebuffed by one magistrate judge in New York City, who concluded that the All Writs Act did not give the courts the authority to issue the kind of order the FBI is seeking, while another magistrate judge in California has temporarily said it would issue such an order, but only after it hears from Apple.
At this point, it appears that the controversy may be resolved in the courts based only on what they find to be the reach of the All Writs Act. But lurking just below the surface of the dispute are lingering constitutional questions, and those may have a bearing on how the old law is interpreted.
Although the government does have considerable authority to enlist the cooperation of the public in pursuing investigations of crime, there almost certainly are constitutional limits on just how far that kind of cooperation can be compelled. If a person or a business firm has in its possession some information that the FBI can show is likely to provide clues to criminal activity, the release of that can be compelled by a subpoena. But the key there is that the information is lodged with that company, and it thus presumably has control over it.
But if it is true that someone else has the information, it is far from clear that a person who created a receptacle to hold that information can be forced, by subpoena or other court order, to divulge information that someone else put into that receptacle. Can the manufacturer of a suitcase, for example, be held legally responsible for someone else’s stuffing that with money robbed from a bank?
The FBI is arguing that what it is seeking from Apple is not like that suitcase example. Apple itself, according to the Bureau’s lawyers, created the software that locks up the iPhones that it has sold to millions of people, and it is thus gave the later owners or possessors of those smartphones the means to frustrate legitimate FBI criminal investigations. It licensed the use of the locking technology, to enhance its own profits by giving users of its smartphones the mechanism to shield their privacy from invasion, according to government attorneys. It thus should come forward with software to unlock the device, it is argued.
But Apple and its supporters are contending that the government never before has been allowed to compel the creation – by a private entity -- of software technology or any other form of creative expression that does not already exist, in order to assist the government in performing one of its missions. In some ways, Apple’s supporters have said, the writing of software code is a form of expression, and the government cannot force private persons or entities to speak, against their will. In other ways, the company’s supporters are saying, it violates the rights of a corporation that creates a marketable product to force it then to write a formula for destroying one of the main features that made the product attractive to consumers.
The fight over Apple and what is in that iPhone is just beginning, but it has major portents for both privacy and law enforcement.
