The All Writs Act is an All Access Pass

Yeah… “It’s good to be the king…!

Those of you that recognize the comic line from Mel Brook’s History of the World: Part 1 will recall that it was used by Mel Brooks during the montage on pre-Revolutionary France where Brooks played King Louis XVI. The king gets to do whatever he wants. Therefore it’s good to be the king…

the all writs act

I’ve been looking for a simple explanation of the All Writs Act of 1789 and for a straight forward explanation on how it applies to the Apple v. FBI case. I found part of this, here. The Act in and of itself is a simple two sentence, two point piece of legislation that provides the government and law enforcement a great deal of latitude when pursuing justice. As its short and to the point, I’m including the full text of the statute, below:

28 U.S. Code § 1651 – Writs

(a) 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.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

(FYI – a “rule nisi” is an order to show cause; and its considered directly applicable, unless the party its directed at can prove that it isn’t)

Application of the All Writs Act requires the fulfillment of [specific] conditions:

  1. The absence of alternative remedies – the act is only applicable when other judicial tools are not available.
  2. An independent basis for jurisdiction – the act authorizes writs in aid of jurisdiction, but does not in itself create any federal subject-matter jurisdiction.
  3. Necessary or appropriate in aid of jurisdiction – the writ must be necessary or appropriate to the particular case.
  4. Usages and principles of law – the statute requires courts to issue writs “agreeable to the usages and principles of law.”

Now, I’m NOT a lawyer; but I was a Regulatory Affairs Manager for a medical device company here in the States for a number of years; and I’m used to reading over legislation, regulations and legal texts. So, the following is my interpretation of what I see going on with the above, and as it relates to the Apple v. FBI case:

  1. The All Writs Act is a Blank Check
    It’s very clear that the government (read: law enforcement) can effectively do whatever it wants when it comes to a legal dead end, if it chooses to. If the government attempts to get a warrant for what they feel is a specific bit of evidence and the warrant is denied or quashed, they can fire back with this; and as long as a judge agrees, they’re in. It’s completely subjective.
  2. The Act in and of itself does not Include Any Challenges or Limitations
    Other than the first condition in the statute, noted above requiring other remedies and statutes to be exhausted first, applying for and receiving the necessary writ need only be
    a. Applied for and executed in the appropriate jurisdiction (you can’t go to a judge in NY for something you want to do in CA)
    b. Must have a basis in law (but depending on the situation at hand, doesn’t necessarily require previous application or precedent).
    c. Necessary to the case

If you think about it, that covers just about everything.

So, for this to be applicable to the Apple v. FBI case where the FBI is looking to get past the password screen on the employer owned, iPhone 5c used by Syed Farook, all the government has had to do is

  1. Try to get past this screen (and they have)
  2. Have hit a technical roadblock (and they have)
  3. Have tried to other legal tools to compel Apple to unlock the phone (and they have)

What’s at issue here is twofold:

It sets a nasty legal precedent

The FBI has backtracked on its previous statements and said that “forcing Apple Inc. to give the FBI data from an iPhone used by one of the San Bernardino shooters would be ‘potentially precedential’ in other cases where the agency might request similar cooperation from technology companies.,” according to an article by Julia Harte and Julia Edwards on MSN.

The FBI stated during testimony given before Congress, and in response to a question from Representative John Conyers, FBI director Jim Comey stated, “of course the bureau would seek to apply the same tactic in other cases.”

Which, by the way, is a direct contradiction to statements that were made by Comey in earlier, taped, interviews where he said that all the FBI wanted was information off of this, one, individual iPhone 5c, in this case

Its unduly burdensome

In essence, as I understand it, the FBI is demanding that Apple create and maintain a new product, specifically for law enforcement, that will permit them to crack into any iPhone, any time they deem it necessary.

It’s not an add-on. It’s an entire new piece of firmware. It’s going to require all of the same development and testing and project resources that every other piece of Apple iPhone firmware requires, along with a secured, dedicated, classified, testing and development lab (in order to keep everything secret and safe.

While the All Writs Act doesn’t provide for safeguards against this, other legislation does. Unfortunately, the liability of proof of this burden lies with Apple, and not with the government. If Apple doesn’t want to do what the FBI is demanding, they’ll be required to demonstrate this to a judge (or to Congress) in federal court or in a formal hearing, respectively.

In an interesting twist, a New York Magistrate, Judge Hames Orenstein found that the government “lacks the legal authority necessary to force Apple or any company to break its own digital security protocols.”

In his ruling, Judge Orenstein indicated he agreed that forcing Apple to “[invent, code and distribute] a purposely vulnerable operating system in hopes of cracking existing device security was unreasonably burdensome.” The ruling in full can be seen here.

Armed with this, Apple has filed a formal objection to their case and has cited the decision noted above it its filing.

There’s more developing in this case, so stay tuned for additional updates as they develop.

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