Saturday, February 27, 2016

GateHouse: Apple invokes privacy in battle with FBI

Matthew T. Mangino
GateHouse Media
February 26, 2016
This week when Apple fired back at the FBI over the controversial order of court requiring Apple to hack into its own cellphone security features, the company said, the All Writs Act “does not give the district court a roving commission” to conscript and commandeer Apple in this manner.
If you have never heard of the All Writs Act don’t feel bad, it was written 227 years ago, about the time the U.S. Constitution was written. Strange that a law written when George Washington was around, and doctors were treating illness with leeches, would have an impact on sophisticated cellphone encryption technology.
How did this order of court spark what called “some of the most passionate debates about technology policy ever?”
The FBI got a search warrant to search the cellphone of one of the dead San Bernadino terrorists.  The phone was built by Apple with a security measure that would delete all data if the wrong passcode was typed in multiple times.
A federal judge ordered Apple to write a program to load onto the phone, so that the FBI could keep guessing new codes electronically, forcing entry without causing the device to delete all the phone’s data.
While the FBI is interested in this particular phone, the agency has lamented ”going dark” the trend that the agency is losing the practical capacity to execute search warrants involving digital communications thanks to a variety of technological changes including, but not limited to, encryption which the provider cannot decrypt unilaterally, wrote Robert Chesney at Lawfare.
How does the All Writs Act figure into this matter? The law provides that a federal court “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
What does that mean?
The theory behind the All Writs Act is that when a federal court has jurisdiction over a matter, the court has the power to issue additional orders of court to assist the court in adjudicating the matter properly.
What does this mean for the Apple case? The Court felt that the government had probable cause to search the phone for evidence in their investigation of terrorism and approved the FBI’s search warrant.
The government was frustrated in efforts to carry out the court order to search the phone. As a result, the Court issued a second order requiring Apple to defeat its security measure which would permit the FBI to access the phone’s data.
The U.S. Supreme Court had cemented the All Writs Act in modern jurisprudence with a decision in 1977 ordering New York Telephone to assist law enforcement with access to technology to investigate gambling.
Orrin Kerr made an interesting historical point in a recent Washington Post column. The All Writs Act was enacted the same week that Congress proposed the Fourth Amendment. The Judiciary Act of 1789, which included the All Writs Act, was signed into law by President Washington on Sept. 24, 1789. The next day, on Sept. 25, Congress passed the Bill of Rights that included the Fourth Amendment.
Which brings us to another issue--Apple supporters have framed the FBI’s actions as “a fundamental threat to our Fourth Amendment rights.”
That assertion is simply not true. The FBI’s actions comply with the Fourth Amendment for two reasons. First, the government got a search warrant based on probable cause. The order for Apple to assist the FBI is based on that valid search warrant.
Second, the government has the consent of the phone’s owner. The phone is owned by the San Bernardino County Department of Public Health, the terrorist’s employer. Consent negates any Fourth Amendment concerns.
What this case is really about is privacy and that is always a contention issue, and by all accounts a long way from being resolved.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

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