The Apple/FBI Case: Freedom, Security, and Judicial Decision-making

In this Sept. 5, 2014 photo, the Apple logo hangs in the glass box entrance to the company's Fifth Avenue store, in New York.
In this Sept. 5, 2014 photo, the Apple logo hangs in the glass box entrance to the company's Fifth Avenue store, in New York. Apple on Wednesday, Oct. 8, 2014 sent invites to an Oct. 16 event during which it’s expected to show off new models of its popular iPad and an update to its Mac OS system.(AP Photo/Mark Lennihan)

On February 16, 2016, the Government, relying on the All Writs Act, requested an order from a federal judge compelling Apple to decrypt an iPhone used by one of the perpetrators of the San Bernardino terrorist attacks. That Act, originally enacted in 1789, permits federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Federal Magistrate Sheri Pym granted the Government's requested order. Once served, Apple refused to comply, and filed a motion to vacate Magistrate Pym's order.
In its motion to vacate, Apple asserted that the All Writs Act did not authorize the court to conscript Apple into government service. Nothing in the general terms of the Act could be read to validate the judge's extraordinary order. In addition, Apple argued that the order violated its constitutional rights under the First and Fifth Amendments. More fundamentally, Apple opposed the order because it would require Apple to create "the equivalent of a master key, capable of opening hundreds of millions of [encrypted] locks--from restaurants and banks to stores and homes," thus damaging Apple, and the public at large.

The Government's opposition to Apple's motion challenged some of the computer company's more esoteric constitutional arguments, but more generally relied on a broad and undifferentiated assertion of national security as the justification for its request. At the same time, the government characterized the controversy as being narrowly tied to a specific set of facts and, hence, of only slight precedential value. Somewhat inconsistently, as to the All Writs Act, the Government argued that the Act should be read as abroad authorization to federal judges to issue orders to non-parties to a litigation in circumstances well beyond anything contemplated by the authors of the All Writs Act. Essentially, the Government asserted that a federal judge should be authorized to make the policy judgment as to relative value and inviolability of digital encryption.

No doubt, this case raises several constitutional issues: a somewhat novel free-speech argument that would treat the forced creation of software as unconstitutionally compelled speech; a potential breach of the free expression and privacy rights of users of Apple products; and the due process problem generating by dragooning a private entity into the government service without specific statutory authorization to do so. And, of course, lurking in the background is the serious national security interests of the United States, including the nation's obligation to protect its citizens from terrorist attacks.

But this case is a poor vehicle for addressing, much less resolving, any of these perplexing and potentially conflicting constitutional concerns. The more precise issue is whether the court is properly situated to resolve this controversy. Most cases filed before a court can be resolved by reference to the precise facts presented. This case, however, is of a very different character. The most important facts are facts not before the court. They are the future consequences that might follow from a ruling that orders the decryption of a single iPhone. Adjusting the law to those potential consequences is not the usual stuff of judicial decisionmaking. Rather, it involves a political judgment that requires the type of policy compromise more properly assigned to the political branches. It seems that the All Writs Act is a slim reed on which to validate such a transfer of policy-making authority to the judicial branch.

In some ways, this case is much like New York Times Co. v. United States, 403 U.S. 713 (1971), the so called Pentagon Paper Case, where the executive branch of the U.S. government sought to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled History of U.S. Decision-Making Process on Viet Nam Policy. While that case is remembered largely as an example of the strong presumption against prior restraints on publication, one of the key facts was the absence of any congressional authorization for the injunction sought by the government. Of course, the All Writs Act was available as generalized authorization to issue appropriate writs, but the Court certainly did not see that statute as a validation for the unique prior restraint sought by the government. Rather, several members of the Court demanded a more precise authorization for the type of order sought. In other words, the All Writs Act is not a catchall provision that allows a federal court to design a remedy for the resolution of any and all modern problems. It permits a federal court to enter the usual writs under the usual circumstances. The All Writs Act simply cannot carry the weight the Government seeks to impose on it.

Moreover, the Communications Assistance for Law Enforcement Act ("CALEA") suggests that Congress might not authorize the type of order at issue in this case. Under that Act, a telecommunications company is not obligated to assist the government with the decryption of a communication unless the company "possesses the information necessary to decrypt the communication." While Apple is not a telecommunication company, CALEA at least suggests that Congress is not readily open to requiring private entities to create decryption programs for government use. Certainly, CALEA suggests that whether to do so is a policy judgment vested in Congress. To use the All Writs Act as an end run around this political choice would seem like an abuse of that statute.

There is an additional concern. No one in this litigation represents the interests of iPhone users. Apple's motion to vacate touched on the rights and potential harm to its users only in passing. It is evident that the First Amendment and privacy rights of the customers are at stake, and it's not entirely clear that Apple adequately represents those interests. Of course, those interests could be adequately represented in a political solution devised by Congress.