“This tension should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.”
— James Comey
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
— Benjamin Franklin
“Reply to the Governor,” 1755
On Dec. 2, 2015, Syed Farook and Tashfeen Malik left their 6-month-old daughter with her grandmother and headed to the Inland Regional Center in San Bernardino, California, where the San Bernardino County Department of Public Health was having a meeting. Farook was a health inspector for the department and his arrival at the event was not surprising. They posed with co-workers for photos, otherwise behaved unremarkably and left about halfway through the event.
They returned just before 11:00 a.m., wearing ski masks and tactical gear, and were heavily armed. Opening fire on the assembled group of health department workers, they killed 14 people between the ages of 26 and 60. Police identified their rented SUV, a chase ensued and then a shootout. Both Farook and Malik were killed in the exchange of gunfire with authorities.
Farook was a U.S. citizen, born in Chicago and educated at Cal State. Malik was a native Pakistani who had spent time in Saudi Arabia. The investigation determined that they had been radicalized individually, before the formation of ISIS, and that their recent activities and involvement in terrorism had occurred online.
During the course of the investigation, multiple pieces of evidence were obtained. Among them was an iPhone 5C, owned by San Bernardino County, but used by either Farook or Malik. Investigators from the FBI attempted to access the phone’s data, but were unable to. Apple’s security features are such that repeated attempts to access a phone’s data without knowing the passcode into the phone will continually lock the phone for longer periods of time and will eventually render the phone completely inoperable. The feature is intended to be an anti-theft device.
Concerned that rather than accessing data, their attempts would instead destroy the very data they sought, the FBI turned to Apple for help. Apple declined to help voluntarily and the FBI went to court to see if they could get an order compelling Apple’s assistance. Last week, the federal judge hearing the case ordered Apple to assist in unlocking the phone. Apple CEO Tim Cook has indicated that Apple will refuse to do so.
The government’s authority to compel Apple’s assistance might present a novel factual situation brought about by new technology, but the authority cited by the federal court couldn’t get much older. The basis for the order requiring Apple to comply was the All Writs Act, which was part of the Judiciary Act of 1789. The All Writs Act says, “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.”
The use of the Act to compel corporations to assist law enforcement in criminal investigations is actually not new at all. The Supreme Court authorized that use in United States v. New York Telephone Co. in 1977, a case that compelled NYTC to assist the FBI in installing a pen register on a suspect’s phone line. In that case, the court concluded, “The power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.”
The Supreme Court established a three-part test in U.S. v. NYTC to be applied to All Writs Act cases. Two of those prongs seem to be clearly satisfied here — that Apple is not too far removed from the case, and that their assistance is necessary. The remaining part of that test asks whether the thing they will be compelled to do imposes an “undue burden” on them. And that’s likely where this case will be decided in the future. In fact, Apple’s deadline to make that claim is today.
From there, the case will likely be appealed to the 9th Circuit Court of Appeals and, perhaps, ultimately to the U.S. Supreme Court. Congress and the president could also circumvent the debate by enacting a law that would require telecommunications companies to comply with these kinds of requests. The only thing truly surprising about this case is the very public nature of the debate between the FBI and Apple, a sign, perhaps, that the FBI is seeking a legislative solution to this problem.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.