Editor’s Note: This article appears as the second of a three-part series dealing with the recent legal battle between Apple and the F.B.I. over a court order requiring Apple to break into the phone of one of the San Bernardino Shooters. Jon examines the legal underpinning of the case.
My colleague Alessandra does an excellent job explaining the basic facts of the Apple case, and correctly points out that over the long-term, we need a public commission to move forward on the new intersection of security and technology. All of that said, for the Apple case specifically, the order that required Apple to assist the FBI should never have been issued.
Let’s look at the basis of the order itself.
U.S. Magistrate Judge Sheri Pym asserts the widely-used authority granted under the 1789 All Writs Act to compel Apple. The basic premise of the act is that a judge may write any order in their jurisdiction that is consistent with applicable law and purpose.
In this case, since the FBI legally sought access to the phone, and in the judge’s opinion such interest was justified, the act could apply to provide such authority. The most commonly cited example, U.S. vs. New York Telephone Company, underscores this possibility. In the case, the Supreme Court upheld a lower court’s decision to order New York Telephone Company to track calls made about a suspected case of illegal gambling.
Despite this clear precedence, Judge Pym misses key differences between the Apple case and the old case, including how her order would violate the actual precedence set by the high court.
First of all, why doesn’t New York Telephone Company apply? The starkest difference between the cases is that a telephone company is a service, not a product. As far as services go, telecommunications were (and are) already highly regulated and declared to advance a public good. As much as I might like my iPhone, it isn’t a “public service.” The burdens and rights are therefore fundamentally different.
Additionally, and on the practical side, the ability to track the calls already existed when ordered to apply it in the case. The technology to break into an iPhone (as anyone who’s ever forgotten their password knows) doesn’t exist. To compel Apple to create it is to compel Apple to expend considerable resources and thus constitutes a fairly high burden to place on a private company.
Even if New York Telephone Company were to apply, both of the above examples are critically important. As the Supreme Court often does, in the case, the justices established a three-prong test to determine the constitutional status of an order under All Writs. If you fail at least one prong, the order is unconstitutional.
Judge Pym violated all three.
The first prong is that the third-party entity ordered to act is not too far removed from the case. Judge Pym comes closest on this prong, but probably is still insufficient. This goes back to the distinction between a service and a product. Although Apple does make software, in the designing of the phone, the principal line of business is creating the phone, not maintaining the security. Additionally, once the phone is sold, it is no longer in the ownership of Apple. Unlike in telecommunications, where the illegal activity was conducted on company phone lines using the main service provided by the company, Apple is decently removed from the actions of the shooters. This prong is a matter of interpretation, but it’s certainly not clearly met.
The second prong is that there cannot be an undue burden placed on the third party. Again, New York Telephone Company had all the technology needed to implement the order. Apple does not. There is no conceivable way that Judge Pym could have met this burden, since it is nearly impossible to properly estimate the amount of time needed to redesign an operating system to make it hackable. Apple takes around a year to release a new operating system, and you can imagine how many people work on such a project. Forcing them to create this software is clearly an undue burden and invalidates the order.
Finally, the last prong is that the service of the third party must be necessary. Cybersecurity expert and Libertarian Party
candidate for president John McAfee (from the anti-virus program) has offered to decrypt the phone free of charge to circumvent a need for Apple to create a backdoor. Case closed; Apple is not needed and this prong is not met.
Regardless of whether the legal precedence of New York Telephone Company is applied, Judge Pym should recognize the dubious nature of her order and withdrawal it.