Friday, April 1, 2016

The FBI, iPhones and National Security

Does the Federal Government Have the Power to Force Apple to Defeat iPhone User Protection?

While the FBI's private contractor has now unlocked the iPhone used by one of the San Bernardino terrorists, and the FBI advised the court earlier this week that it no longer requires Apple's assistance, the underlying issue is not going away any time soon.  

The real issue in these cases is whether the FBI, a part of the Executive Branch, has the power to force Apple to write software to override a user's security choices.  On the current iPhone, a user can set the phone to erase all data on the phone after 10 failed attempts to enter the correct passcode.  The erase feature provides peace of mind for those who use their iPhone to do banking and other sensitive tasks, and Apple has made strong protection a prime selling feature of the iPhone.  

The federal government is currently seeking court orders against Apple in several cases.  The problem is that the federal government ultimately lacks the authority to seek such orders.  Under the Constitution, the three branches each have limited powers, and the power being asserted by the Executive Branch simply does not exist.  The government knows this, and that is why the Justice Department is attempting to use the All Writs Act, a law dating back to 1789, to try and get what it wants.  But that law, which was designed solely to ensure that federal judges had the ancillary judicial powers necessary to their work of being judges, provides zero authority for the Executive Branch to direct and control the choices that private companies like Apple choose to make about their products.

Once again, faced with an outcome it dislikes, we have an administration that asserts unlimited executive power to act as it deems necessary.  This current effort, all too common in this administration -- especially in matters governed by administrative agencies -- brings to mind the attempted seizure of the steel mills by President Truman during the Korean War, which he felt was critical in the face of a potential strike.  In a stinging rebuke, the Supreme Court held that his seizure was unconstitutional due to a lack of authority.  

As Chief Justice John Marshall stated over 200 years ago in Marbury v. Madison, the seminal Supreme Court case that established the primacy of judicial review while addressing the limits of government authority, "[t]he Government of the United States has been emphatically termed a government of laws, and not of men."  To the extent that courts today do not keep in check unbridled efforts by the Executive Branch to assert powers it does not possess, like those being asserted against Apple under the All Writs Act, they will diminish the force of these words.   More importantly, they will diminish the revolutionary idea behind them of limited government power -- an idea that has served us well for over two centuries. 

For an interesting and comprehensive analysis of the issues involving Apple and the All Writs Act, take a look at this decision issued recently by Federal Magistrate Judge Orenstein:  OrensteinOrder22916