Wednesday, March 23, 2016

The Apple/FBI Case: A Few More Thoughts Before the March 22 Hearing

By: Professor Simona Grossi
Professor Grossi is guest posting on The Huffington Post, where this originally appeared.

As I explained in my posting of March 14, the Government’s request for a decryption order addressed to Apple invoked the All Writs Act. That Act provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651. This text was designed to vest federal courts with the full range of remedial judicial authority one would expect a court to possess. That authority is an authority to enforce the rule of law within appropriate filed cases, not an independent authority to create new law. Hence, in a properly presented case, a federal court may issue a writ of mandate to require a party to comply with the applicable legal standard. But if there is no law to enforce, if there is no applicable legal standard, the All Writs Act does not vest a federal court with the authority to create one.

With the above considerations in mind, the order signed by Judge Pym is remarkable in that it references no substantive legal standard that would permit the judge to order Apple to assist the government in decrypting the iPhone. The only legal authority cited in the order is the All Writs Act itself. But the All Writs Act cannot come into service unless there is a rule of law to be enforced, and as far as the order is concerned no such rule of law was at play. The only conclusion one can draw from this is that Judge Pym’s order is implicitly based on a newly fabricated, but yet to be articulated, rule of law. In the absence of some constitutional, statutory, or common law principle from which that rule was derived, the order is virtually lawless.

Keep in mind that in securing the challenged order, the Government proceeded ex parte, without notice to Apple or to any other party who might have challenged the Government’s request. Hence, the Government’s request was not subjected to any form of the adversarial process. Apple’s motion to vacate has brought adversity to the process and now as framed the controversy as one pertaining to the scope of the All Writs Act and potential constitutional limits on this particular application of the Act. In its reply brief, filed on March 15, Apple focused largely on the former question. There, Apples stressed that the Government was asking the court to resolve a policy question that is now being debated by the political branches, the type of policy issue that a representative democracy usually reserves to those branches. The Government, for its part, sees the All Writs Act as a type of roving commission authorizing courts to do justice whenever doing so seems like the right thing to do. But determining what constitutes “the right thing to do” in this particular context is well beyond the role we usually assign to judges. In fact, the question of doing “justice” here requires precisely the type of policy balancing that is most indicative of the legislative process. For example, how is a court to determine whether national security is better served by an inviolable encryption system or by one with readily accessible backdoors? Assuming some measure of decryption is required, how will a court determine when and under what circumstances an obligation to assist the Government will be triggered?

It’s not that courts don’t make law. They do. But most typically they make law by a process of interpretation that operates on the edges of a constitutional or statutory text. Here there is no text. The court is being asked to start from scratch. Actually, it’s even worse. As Apple points out in its briefs, Congress has considered the obligation to provide decryption assistance and has created a limited obligation to do so for telecommunications providers. Apple is not a telecommunications provider and even if it were, the judge’s order imposes an obligation that exceeds the one created by Congress. Hence, to the extent that there is law, it suggests that congressional policy would go against the remedy sought by the Government.

The fundamental question posed by this case is whether in a democratic society, a court is the proper institution to make the intricate policy judgments pertaining to the obligation of an information services provider to assist the government in the decryption of a product created by that provider. If Judge Pym sustains her initial ruling, it’s very likely that Apple will seek review in the district court, and the case could ultimately end up at the Supreme Court. Although this may sound like a battle between lawyers involving the interpretation of obscure statutes, this case is much more than this. Everyone should be interested in it, in part because anyone reading this post relies on digital devices and sources. But more importantly, everyone should be interested in this case because the executive branch is asking the judicial branch to create law where Congress has declined to do so. This is an inappropriate use of executive power, and inappropriate invocation of judicial authority, and that is a matter of great public concern.

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