Should Apple resist the FBI?
The FBI wants Apple to do something no private company has ever been forced to do: break its own technology. Specifically, the FBI wants Apple to build a new version of its mobile operating system (iOS, or GovOS) so that the contents of an iPhone can be removed from an iPhone used by Syed Farook, one of the gunmen in the San Bernardino shooting.
A magistrate judge recently ordered Apple to comply with this request; Apple in turn filed a Motion to Vacate (MTV) the magistrate’s order. The key point made in the MTV — and the key issue on which this entire case hangs — is that complying with the FBI’s request would weaken a valuable encryption platform at a time when the United States desperately needs stronger, more effective encryption.
There is an arms race to create more-sophisticated, harder-to-crack encryption tools, and if the FBI gets its way, we will be running that race with a self-imposed handicap.
This week Apple is appearing before Congress to address the issues raised above. For those unable to attend the hearings, I want to explore how Apple is thinking about the FBI’s legal authority to compel the company to create new software to crack Apple’s security measures.
After exploring that legal issue, we’ll consider the broader constitutional stakes involved in this case. After all, it’s not everyday that the U.S. government asks a private company to undermine a technology platform without providing any concrete evidence that doing so will make Americans safer.
What does the law say?
To understand what the law says, we must first properly frame what the FBI is trying to compel Apple to do. Without a precise understanding of what the FBI is demanding in this case, it is hard to clearly say that the FBI is trying to overstep its bounds.
What is the FBI seeking here? First, the FBI is demanding that Apple make a new software product. Second, that software product would have to be designed in accordance with specifications provided to Apple by the FBI. Third, once Apple created that software product, it would have to test the product to ensure it met Apple’s own quality standards. Fourth and finally, Apple would have to test and validate this software product so that criminal defendants would be able to exercise their constitutional rights to challenge the government’s legal claims as provided by the Federal Rules of Evidence (FRE).
Forcing a company to break its own technology appears to be something a dictatorship might do, not a democracy like the United States.
Simply put, the FBI is demanding that Apple create a new software product that meets specifications provided by the FBI. As Apple clearly articulates in its MTV, the FBI is demanding “the compelled creation of intellectual property.” The legal grounds for the FBI’s demand come from the Communications Assistance for Law Enforcement Act (CALEA) and the All Writs Act (AWA).
With this understanding in mind, what does the law say? Is there any law that allows a government agency such as the FBI to compel private companies to create new software products?
Let us begin with the key law regulating the interception of electronic communications, CALEA. This law was enacted to carefully control the government’s right and ability to intercept communications in order to enforce the laws of the United States. Specifically, CALEA outlines the circumstances in which a private company must provide law enforcement with assistance in order to effectively carry out electronic surveillance.
Under CALEA, there is a strong argument that Apple cannot be legally required to create new software of any kind for any department of the federal government. When Congress passed CALEA, it had the opportunity to include device manufacturers like Apple within the scope of the law. Congress decided to require telecommunications companies to ensure that their equipment and facilities are built in a way that allows the government to conduct surveillance on the basis of a lawful surveillance warrant.
In other words, telecommunications companies have to build in a back door. However, under CALEA, Apple is not a telecommunications company; instead, Apple is considered an “information service” to which CALEA does not apply. In short, Congress made it clear they did not intend for CALEA to even apply to companies like Apple.
Even if CALEA applied to Apple, the FBI would not be entitled under CALEA to force the company to break its encryption protocol. The statute in section 1002(b)(3) states that telecommunications companies are not responsible for decrypting communications “unless the encryption (1) was provided by the carrier and (2) the carrier possesses the information necessary to decrypt the communication.”
Because Apple does not currently possess that information, even an improperly broad interpretation of CALEA would not compel Apple to create GovOS in this case. The FBI can ask, but under CALEA it cannot compel.
The All Writs Act (AWA) also does not allow the FBI to compel Apple to create new software. Enacted in 1789 as a stop-gap that allows the government to efficiently administer its given legislative privileges, the AWA is being given an impermissibly broad interpretation by the FBI.
According to that interpretation, this stop-gap gives courts any relief that is not specially prohibited by existing law. So, if there’s no law expressly prohibiting Apple from being compelled to write code for the FBI, then the AWA gives courts the authority to force the company to do just that.
Apple should do what is necessary to preserve our enduring constitutional values.
Let’s take a completely make-believe example. Imagine that a federal law gives a particular agency the right to do X, but doing X is hard and costly. The AWA might be invoked to help get X done more efficiently. But the key is this: The AWA is only appropriate when there’s already a federal law or a constitutional principle that gives the particular agency the right to do X in the first place. That is precisely why the AWA cannot be lawfully used by the FBI in this case: The FBI has no underlying right to compel Apple to create new software products.
If this seems like a legal technicality, zoom out a bit and reconsider that for just a minute. Imagine if the Department of Homeland Security used the AWA to argue that citizens with certain last names should be subject to arbitrary detention to make it easier to catch terrorists. Would that violate American values and our system of laws? Absolutely.
Alternatively, consider a scenario in which the Department of Energy tried to use the AWA to force federally funded universities to “donate” resources to the DOE in order to enhance its Energy Materials Network. Would this be inappropriate? It would be completely inappropriate, because the DOE does not have the underlying legal right to force universities to do this.
In a nation of laws, the FBI’s attempt to expand the AWA is dangerous. The FBI’s interpretation of the AWA transforms the law into something it was never meant to be: a tool granting government agencies boundless powers not authorized under the Constitution or in existing federal law.
Lawyers have a fancy way of describing this problem. They say that expanding the AWA violates the separation of powers between the federal courts and Congress. After all, what is the purpose of Congress if our courts are allowed to expand federal law without any meaningful limitations? One might go further still and say that forcing a company to break its own technology appears to be something a dictatorship might do, not a democracy like the United States.
Fortunately, a Brooklyn judge recently ruled, in a separate but similar case involving a demand from the Department of Justice to unlock an iPhone, that the AWA only empowers courts with “residual authority to issue orders that are consistent with the usages and principles of law.” Judge Orenstein explicitly condemned the government’s overreach in that case, echoing the exact concerns explored above: “The implications of the government’s position are so far-reaching — both in terms of what it would allow today and what it implies about Congressional intent in 1789 — as to produce impermissibly absurd results.”
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