Editor’s Note: This article has been updated to reflect the news that the federal judge has granted the government’s request for a delay in the case, giving the FBI time to test a new method of cracking the iPhone without Apple’s help.
The Justice Department is testing out a new way of getting inside the locked iPhone used by one of the San Bernardino shooters — one that doesn’t involve Apple’s help.
If the new alternative proves viable and resolves the legal standoff between Apple and the FBI, it will leave unanswered the question of the scope of the government’s power to compel an unwilling company’s technical assistance.
That question rests on how widely the government can apply an 18th-century law called the All Writs Act. Its wording is so short, it fits into two tweets (if u know how 2 abbreviate). And it’s come under fire for being old — described as antiquated, even “inept,” in a recent congressional hearing.
It may be tempting to dismiss All Writs, as it’s called. But it’s been at the crux of the debate in court, and each party will stand by a different interpretation of one specific case: United States v. New York Telephone. While the Supreme Court has had quite a few cases involving law enforcement and access to digital data, this one in 1977 is the last time the justices applied All Writs to a telecommunication provider.
The FBI was trying to bust an illegal gambling ring at 220 E. 14th Street in Manhattan. The investigators wanted to track all outgoing calls and identify co-conspirators. As Steve Vladeck, a law professor at American University, explains, the FBI “needed technical assistance from the phone company to actually install the analog 1970s-era equipment.”
The phone company, New York Telephone, was happy to point out the specific wires linked to the two landline telephones in question. And the company told the FBI: Go ahead and string some cables from the gamblers’ apartment to wherever you want to set up your monitoring.
But the FBI essentially said: We can’t string cable — it would tip off the bad guys. The investigators had another idea: The phone company would give them some spare phone lines, right next to the gamblers’ lines to let the investigators use another, more discreet, tracking technique.
“The phone company objected because they weren’t a party to the case; they didn’t think they had to comply,” Vladeck says.
The company argued it wasn’t part of the investigation or the criminal wrongdoing, it was just a third-party phone provider — plus, it had helped out plenty already.
In a 5-4 decision, the Supreme Court disagreed with New York Telephone. Justice Byron White wrote for the majority:
“We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed. We conclude, however, that the order issued here against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress.”
There are key differences between that case and the legal standoff between Apple and the FBI. First, New York Telephone was, as the majority opinion stated, “a highly regulated public utility with a duty to serve the public.” Apple is not. And second, the FBI is asking Apple to write code that does not yet exist.
Vladeck says it’s a much higher burden. “I personally think there is a very big difference between a court order to a phone company to simply help the government do something the phone company already has the capacity to do,” he says, and “an order commanding the company to devise software it does not already possess.”
And Vladeck makes an interesting sub-point, referencing another case that involves the FBI and a locked iPhone in Brooklyn. In the San Bernardino case, a judge has already ruled Apple has to write code to help the FBI unlock an iOS 9 phone; in the Brooklyn case, another judge ruled that Apple does not have to hand over code it has already written to the FBI, to help unlock the older iOS 7 operating system.
“That’s entirely backwards,” Vladeck says.
Lawyer Joe DeMarco has a different take: “Even innocent bystanders are required to assist the police if the police ask for their help.”
DeMarco, who has filed a friend-of-the-court brief in the California case on behalf of law enforcement groups, cites one case in Connecticut, in which a fight broke out in a workplace. A single police officer came on the scene. He called for backup, which had not yet arrived. “And as the police officer was trying to subdue the person who was making a ruckus at the company,” DeMarco says, “the police officer called out to a security guard asking for the security guard to help.”
The security guard refused and ended up facing criminal charges for it, DeMarco says.
DeMarco says if it’s reasonable to expect a private citizen to jump into a fistfight to help the police, then it seems to follow that it’s reasonable for a company to write some lines of code for one particular phone.
In the San Bernardino case, the FBI is now scheduled to file a status report on its testing of the new method by April 5.
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