Scott Forsyth, The Daily Record Newswire
If you watched “60 Minutes” before Christmas, you saw Charlie Rose interview Tim Cook, the CEO of Apple. Part of the interview dwelled on his unwillingness to build a “back door” into iPhone software to enable a government to retrieve data stored on the phones.
Cook pointed out the devices contained all sorts of personal information which the owner would not want to share with government. To put it in constitutional terms, the owner has a reasonable expectation of privacy with respect to the contents of his smartphone.
Rose pressed Cook. Many times a government has a need to know the contents. Doesn’t that trump the owner’s expectations? Cook responded, if such a need exists, the government can obtain a warrant to search the device.
What Cook did not say and what the Department of Justice will tell you is that obtaining a warrant to seize a smartphone and search its contents may not be enough. The owner may have locked the phone and encrypted the data on it. How does the federal government execute the warrant then?
Colonial era
It wants the manufacturer of the smartphone, such as Apple, to override the lock. If the manufacturer refuses, it will ask a magistrate of a federal district court to order the manufacturer to do so, pursuant to the colonial-era All Writs Act, 28 U.S.C. § 1651(a).
And what is the All Writs Act? It allows a federal court “to issue all writs necessary or appropriate in aid of (its) respective jurisdiction,” once jurisdiction has been established. The Act is not an independent basis of jurisdiction.
A good example of the application of the Act is United States v. Hall, 583 F. Supp. 717 (E.D. Va. 1984). An arrest warrant was issued, the subject of the warrant fled with his girlfriend, and the government obtained a writ compelling a bank to duplicate and turnover all credit card records of the girlfriend to assist it tracking the two.
How have magistrates responded to motions by the DOJ to unlock smartphones? In most cases by granting them. See, e.g., In re XXX, Inc., No. 14 Mag. 2258, 2014 WL 5510865 (S.D. N.Y. Oct. 31, 2014).
However, in October a magistrate went the other direction, “strongly suggest(ing) that granting the motion would be inconsistent with the purpose of the All Writs Act.” In re Order Requiring Apple, Inc., to Assist in the Execution of a Search Warrant Issued by This Court, 15 MC-___, (E.D. N.Y. Oct. 9, 2015).
Limitations on use
The magistrate noted several limitations on the use of the Act.
First, a court should not issue a writ if the assistance the government seeks has been considered by Congress and rejected, for whatever reason. The magistrate found abundant evidence that Congress and the administration are fully aware of the smartphone lock problem and have proposed several bills to remedy the problem. Unable to reach a consensus on the subject, the branches let the bills languish.
Second, and most obvious, what the government seeks must be within the capability of the third party of providing. On this issue there was no evidence before the magistrate.
Subsequent to the decision, the Washington Post reported the seized smartphone was using an operating system older than iOS8. Consequently, Apple did have the capability. If the system is iOS8 or later, Apple truly lacks the capability. The owner and the owner alone “hold(s) the key-your unique password.”
In this important way, accessing a smartphone can be distinguished from Hall and the many other cases arising under the Act. The manufacturer does not possess or have effective control over the information the government seeks.
Unreasonable burden
Third, compliance with a writ must not unreasonably burden a third party. A third party cannot be conscripted into the service of government if liberty or property interests of the third party may be jeopardized. Due process is at stake. A hearing must be held on the subject.
The magistrate speculated and Apple confirmed in a post-decision brief that for marketing purposes Apple weighed personal privacy and data security above public safety in designing its smartphones. Enabling the federal government to extract data after the sale of a smartphone would betray the trust built up between Apple and its customers. Reputation is an interest protected by the Due Process Clause.
Ironically, the magistrate did not hold a hearing. Shortly after his decision the defendant pled guilty. Apple still wants a final ruling, because the contents of the phone may be relevant to an ongoing narcotics conspiracy and the magistrate is sympathetic to the company.
The All Writs Act aside, in the opinion of many experts the fear over encryption is overblown. To quote three, “the greater public good is a secure communications infrastructure protected by ubiquitous encryption at the device, server, and enterprise level.” Law enforcement “will develop technologies and techniques to meet their legitimate mission goals.”
The attacks in Paris and San Bernardino and the aborted attack in Rochester do not change this analysis. We should not sacrifice privacy, a cherished value, for enhanced security, which may prove illusionary.
That is what the attackers want us to do.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
