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.

Related Posts:

Apple Tells the FBI to go Pound Bits

The FBI’s request for Apple to crack the San Bernardino terrorist iPhone 5c isn’t as cut and dry as it might appear…

apple and the fbi

This story has been making headlines for quite some time now, and I honestly think that it will continue to make headlines for some time to come. In fact, I can see this subject staying in the news for at least the next couple of months…

This is perhaps one of the most controversial issues I’ve seen out of the tech sector in a very long time. I’m also not entirely certain that there has EVER been such a controversial or politically charged issue on the minds of nearly every personal computer user – like, EVER.

At the heart of the issue is the iPhone 5c used by Syed Farook.  Farook and his wife, Tashfeen Malik killed 14 people and injured another 22 during a training class and party in December 2015.  The FBI has tried to access the iPhone 5c, but have not been able to get past its passcode, which resets after 10 failed attempts, rendering the device inaccessible.

During the week of 2016-02-14 to 2016-02-20, a federal judge ordered that Apple must assist the FBI in getting past the passcode screen.  Apple, has since refused to comply with this order, stating that they intend to fight the order, which they see as a violation of the right to privacy and of civil liberties.

At issue, is not this one single iPhone, owned by the (uninvolved and unknowing) business that Farook worked for.  According to Apple, the only way to gain access to an iPhone locked with a passcode is to crack the encryption and build a back door into the OS.  According to the FBI, Apple doesn’t have to create that back door. They can simply modify this one, particular iPhone 5c and give the FBI the access they need.

First of all, I think it’s interesting that the FBI can make this determination. If they’re smart enough to figure THAT out, then why can’t they crack the Farook’s iPhone themselves?

The logical answer here is they don’t.

They’re making an assumption, and I don’t believe they know what they’re talking about. If they had the technical hutzpah to make that statement, then they wouldn’t need Apple.

Now, according to an interview with Tim Cook that aired on ABC World News Tonight, there are some very serious problems with this request. Actually, Tim Cook called the issue “complex.”

According to Cook,

“If a court can ask us to write this piece of software, think about what else they could ask us to write — maybe it’s an operating system for surveillance, maybe the ability for the law enforcement to turn on the camera,” Cook said. “I don’t know where this stops. But I do know that this is not what should be happening in this country.”

In a message from Cook to Apple customers during the week of 2016-02-14 to 2016-02-20, Cook said that they had provided assistance to the FBI, but wouldn’t create a backdoor that would have the potential to crack any iPhone.  This decision was applauded by both Google CEO Sundar Pichai and WhatsApp CEO Jan Koum, among other Silicon Valley big wigs.  Currently, there are approximately two dozen iPhones held by law enforcement agencies around the country where those agencies are interested in the outcome of this case.

If the FBI prevails, precedent is created for Apple to provide them with the same kind or type of tool or service for unlocking those two dozen or so iPhones as well as any other encrypted iOS devices in the future.

This is the biggest concern of all, as then this leaves Apple open to similar requests from nearly every legal agency in this country as well as other’s around the world, to provide them with the same kind of access.  So, every political dissident or activist that is detained by a dissenting, international governing body that owns an iPhone or other iDevice, will demand that Apple provide them (that governing body) with the same services.

The story here only gets more and more interesting…

Bill Gates, one of the founders of Microsoft, was recently quoted as coming out AGAINST Apple’s plight against the FBI.  When asked for clarification, Gates replied,

I was disappointed, because that doesn’t state my view on this. I do believe that with the right safeguards, there are cases where the government, on our behalf — like stopping terrorism, which could get worse in the future — that that is valuable. But striking that balance — clearly the government [has] taken information, historically, and used it in ways that we didn’t expect, going all the way back, say, to the FBI under J. Edgar Hoover. So I’m hoping now we can have the discussion. I do believe there are sets of safeguards where the government shouldn’t have to be completely blind… The courts are going to decide this…  In the meantime, that gives us this opportunity to get [in] the discussion. And these issues will be decided in Congress.”

However, in a statement released on 2016-02-26, Microsoft itself has come out in support of Apple, and not the FBI, like its co-founder, Bill Gates.  Microsoft’s support comes in the form of an amicus brief that it will file with the court next week.  Microsoft’s support is joined to that of Google’s and Facebooks, but really, according to Microsoft’s President and Chief Legal Officer Brad Smith from testimony taken from a congressional hearing, the government, not the courts needs to discuss the [implementation of]new legislation to govern privacy.

The focus of Microsoft’s statements can be nicely summed up with a statement from an industry group, “while it’s ‘extremely important’ to deter crime and terrorism, no company should be required to build back doors to their own technology.”

Personally, I #StandwithApple.  While I support the US government’s stand against terrorism and generally consider myself to be a conservative, the government doesn’t need a back door into my smartphone.  Giving the government too much power and access into my privacy and personal life is NOT what I want.

I’d love to hear everyone’s opinion on this.  If you agree or disagree, support Apple or support the FBI, I’d love to hear your thoughts on the issue. Please share them with us in the comment section below and lend your voice to the discussion.

Related Posts:

Stay in touch with Soft32

Soft32.com is a software free download website that provides:

121.218 programs and games that were downloaded 237.780.356 times by 402.775 members in our Soft32.com Community!

Get the latest software updates directly to your inbox

Find us on Facebook