Civics 101 – 

Why I think Apple could win on #legal grounds, despite finding Apple PR disingenuous as to what the FBI is actually requesting: 

The All Writs Act gives federal courts authority to issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” however “the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed.”


Thus, while the 2d Circuit ultimately found a district court order, directing the NY Telephone Co. to assist the FBI in installing and operating pen registers on two telephone lines, lawful, it also expressed the concern an expansive reading of the All Writs Act could establish an undesirable precedent for the authority of federal courts to “impress unwilling aid on private third parties.” And while the 2d Circuit upheld the order against NY Telephone Co, it noted that NY Telephone Co is a public utility “with a duty to serve the public.”


Apple lawyers would likely argue, amongst other things, that Apple is a “private third party” (with fiduciary duties to its shareholders, not the public), and that requiring it to create unique software, that does not currently exist, to allow the government to brute force hack an iPhone more quickly, creates an “unreasonable burden.”


The case would be distinguishable from law enforcement obtaining a valid warrant to search a house, going to the landlord, and having the landlord open the door to the house via a duplicate key. Rather, it goes to Tim Cook’s point that the USG is asking Apple to create something that does not exist – and, a persuasive legal argument that an “unreasonable” burden is being imposed on a private third party. 

Ultimately, private parties should not be conscripted into being an extension of the government. A private company’s legal fiduciary duties are to it’s shareholders (which would arguably include actions to find tax shelters abroad, and harboring billions of dollars of profit abroad to avoid incurring tax liability, to the extent permitted by law). Opening a door to a house with a duplicate key that already exists creates no or little burden, but requiring a private company to create a key that does not exist, strays closer to effective conscription of a private company into the service of the government. Crossing that line could be the “overreach” the All Writs Act did not anticipate.


US v. NY Telephone Company (2d Circuit, 1977)


Why doesn’t the media report on the *legal issue(s)? – “In fact, our ruling[s] [are] that whoever does get to decide this or that is allowed to do it, and that it’s not unconstitutional, that it’s consistent with the law,” Roberts said. “But we often have no policy views on the matter at all, and that’s an important distinction.”

What sometimes irks me regarding the Apple-FBI court battle is what it doesn’t talk about. And that is … the law.
Right now there is a rather narrow issue being considered in a court of law.
But very little is being reported on the narrow legal issue. Rather, much public attention is focused on the broader security v privacy *policy debate.
The question before the court right now is (a) whether the order compelling Apple to comply with the DOJ’s request is lawful, not (b) whether “backdoors”, even pursuant to a valid court orders, are a bad idea.

(a) is what courts decide, (b) is what legislatures determine.

Confusing the two risks arriving at the conclusion the corporations are above the law. That if Apple is “right” on public policy grounds, then it is “right” in opposing a court order.

*That* is a dangerous precedent to establish in the court of public opinion.

Apple Isn’t Above the Law, Even If Tim Cook Is Right About Protecting Privacy

A legal appeal is entirely within due process – focusing on legal issues. So, I don’t agree with the author’s implication that anybody should automatically accept the legality of a court order. 

My beef is with what seems to be a popular notion amongst privacy advocates that *policy positions justify defiance of an otherwise valid court order, as the order stands.

The pro-Apple protesters need to spend their time lobbying their Congressmen, or in a classroom brushing up on their civics 101, not picketing outside FBI headquarters.


Mr. Comey struck a conciliatory tone, saying he believes in encryption and privacy, and at no point criticizing Apple or Silicon Valley. “There are no demons in this dispute, or the larger dispute,”’ he said.


He said the issue of privacy, security and criminal investigations are weighty matters that should be decided by the country, not just the FBI and Apple.


“The San Bernardino litigation is not about us trying to send a message or set a precedent,’’ Mr. Comey said. “The FBI focuses on a case, and then a case, and then a case.’’


The FBI director was repeatedly pressed on what policy prescriptions he would offer in the debate over encrypted data, but said he wanted the FBI to offer information, not opinions. 


If law enforcement conducting an investigation cannot look at data on a phone even with a court order, he said, “the world will not end—but it will be a different world.”


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