Sunday, March 13, 2016

#73 / All Writs

If you are following the FBI versus Apple controversy, in which Apple is opposing the federal government's demand that Apple decrypt its iPhones, to assist the FBI in its investigations, you will remember that the federal All Writs Act is the key law at issue.

The United States Department of Justice has been claiming that Apple is "flouting the rule of law." This is a charge made by United States Senator Dianne Feinstein, too. If you actually read the All Writs Act, you will see that the law does not, in fact, say anything either directly or indirectly that makes clear that the demand made upon Apple is a "law" or any kind of a clear legal requirement. 

The All Writs Act gives power to the Judicial Branch of government to issue orders that are "agreeable to the usages and principles of law." So, the controversy is not about a decision by Apple to "flout the law." It's about Apple's appeal to the Judicial Branch, urging the Judicial Branch to provide some guidance on a contested issue, with Apple claiming that the demands made by the FBI are not "agreeable to the usages and principles of law." 

Far from "flouting the law," Apple is doing what we would like to think that anyone could do, when presented with a demand that the person receiving it believes is unjustified. Apple is asking the courts to determine if the demand made by the FBI is, in fact, legitimate. That isn't "flouting the law;" it is seeking an authoritative decision on what the law requires. That's what the courts are for; they are supposed to be a "check" that balances assertions of Executive Branch power.

The FBI is taking the position that if the FBI says it, and if one Magistrate agrees, the FBI's demand IS the law. I am personally happy that the courts are going to review that assertion. Probably, it will take a decision by the United States Supreme Court to make clear just how far government power extends, in cases like this one. 

Clicking this link will take you to a discussion on the Techdirt website that I think is worthwhile. I think that this article in the March 11, 2016 edition of The New York Times is also quite helpful in illuminating the issues:

“Everyone should beware,” Mr. Sewell [Apple's attorney] said, “because it seems that disagreeing with the Department of Justice means you must be evil and un-American.” 
On the actual merits of the dispute, Apple’s lawyers reiterated that the government’s interpretation of the All Writs Act was simply wrong and that the authority the government seeks “is breathtaking,” essentially arguing that courts can order any private citizens or companies to do what the authorities want so long as there is jurisdiction. 
Apple will have another chance to rebut the Justice Department’s case before a hearing scheduled for March 22 before Magistrate Judge Pym. No matter how she rules, the closely watched case is almost certain to be appealed to the district court, the Ninth Circuit Court of Appeals, and perhaps even the Supreme Court.

In fact, it is not "evil" or "un-American" to resist governmental demands. And the authority that the federal government is claiming over ordinary citizens is, as Apple's attorney says, truly "breathtaking." The government is claiming that any citizen must take whatever actions the government demands of them, if the government gets a Magistrate to agree that this would help the federal government accomplish a legitimate government objective. 

As I have noted before, claims by Great Britain that this is, in fact, what governments are entitled to claim of individual citizens, resulted in the American Revolution. 

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  1. Editorial note: your "About Me" description asserts that you "also each courses in Legal Studies at UCSC." That could use some attention.

  2. To "each" his own? Thanks, John. Attention paid!!

  3. Indeed, it's important to resist governmental demands. But not on false grounds. Tim Cook's letter [1] undeniably misrepresents the FBI order [2].



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