Is the FBI Warrant against Apple Legally Suspect?
The Wall Street Journal has come out today in favor of Apple in its legal fight with the FBI in an editorial titled “Apple is Right on Encryption.” The editorial notes that the FBI is invoking a law that only allows them to exercise powers Congress has granted, which in this case it has not. The newspaper says the case is not about privacy but about security for all Americans.
A California judge ordered the company to design a custom version of its operating software to disable certain security features and allow the FBI to break the password. Apple has cooperated with the probe but argues that forcing it to write new code is illegal.
Judges Must Follow Laws
The FBI’s assertion that its order is a run-of-the-mill search warrant is false, the editorial argues. The FBI is invoking the 1789 All Writs Act, which grants judges the authority to enforce their orders as “necessary or appropriate.” But the All Writs Act is not a license for anything judges want to do. They can only exercise powers granted by Congress.
Laws of Congress already obligate telecoms, for example, to assist in surveillance collection. But Congress never said the courts can command companies to provide digital forensics or build programs for the FBI, even if needed for a search.
Congress could require companies to create “back doors” into their devices. In the absence of congressional action, however, courts cannot commandeer third parties ex post facto.
An Extraordinary FBI Request
The FBI’s request is extraordinary since the iPhone security methods were legal when they were created and still are. Apple has no more relation to the data on terrorist’s phone than Ford does to a bank robber who uses a Ford as a getaway vehicle.
If the government can require a manufacturer to invent intellectual property that does not exist in order to invade its own products, there is no limiting legal principle.
Order Sets Bad Precedent
Apple is not merely being asked to crack “one phone in the entire world,” as presidential candidate Marco Rubio asserts, the editorial notes. The Justice Department is demanding Apple provide software retrofits in at least a dozen public cases, and local and state prosecutors have stacks of backlogged iPhones they want unlocked too.
If Apple now writes the desired program, the technique will be used in investigations having nothing to do with terrorism as other prosecutors will use the same argument. Such is the “back door by degrees” that Apple CEO Tim Cook has described.
FBI Director James Comey told Congress last week the Apple case was “unlikely to be a trailblazer” and “instructive for other courts.” This is a contradiction.
The FBI Has Other Options
One question is why the phone wasn’t sent immediately to the National Security Agency, which has a formidable decryption unit. Federal specialists probably can hack the phone without Apple’s services, especially considering it is an older model.
This case isn’t about privacy; it’s about the security of all Americans.
Terrorists and criminals will always be able to find an underground encrypted communication channel, so regulating back doors into legal devices accomplishes little national-security benefit.
If Congress is really going to outlaw stronger encryption for law-abiding Americans, it would be a far more dangerous precedent for the courts to do so without guidance from Capitol Hill.
If the debate really is critical to protecting public safety, Comey should appeal to Congress to change the law instead of insisting the courts should resolve a major policy dispute on his behalf.
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