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Forcing Apple into the Service of the Government

Cell phone in chains
Cell phone in chains
Alex Abdo,
Former Senior Staff Attorney,
勛圖眻畦 Speech, Privacy, and Technology Project
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October 27, 2015

The government argued before a federal judge in Brooklyn yesterday that it should be able to force Apple to unlock an iPhone as part of a criminal investigation.

We have explained why we think what the government has asked for is unlawful. But there were two critical moments at the hearing yesterday that crystallized the sheer breadth of the governments legal theory about when it can compel private companies to assist in its investigations.

When federal magistrate Judge Orenstein first received the governments request for a court order to compel Apple to break into the iPhone, he expressed uncertainty about whether the law the government relied on the All Writs Act, an 18th-century law that, in part, allows federal courts to issue orders to effectuate otherwise valid orders allowed the government to force Apple to do its dirty work. Judge Orenstein solicited views on the question from both Apple and the government, and the competing positions were on display at yesterdays fascinating hearing.

The hearing was full of memorable moments for example, when Judge Orenstein flatly told the government that the surpassing lengths to which its went to question the patriotism of a company standing on its rights were not helpful. Yet two other moments may have particularly lasting significance.

The first was Judge Orensteins lethal-injection hypothetical. Apple argued in its brief that forcing it to unlock one of its customers iPhones was a form of impermissible conscription into governmental service, not authorized by the All Writs Act because Apple does not possess the information that the government is after. Apple likened the order that the government sought to one compelling an unwilling locksmith to break into a clients home.

Judge Orenstein described the locksmith hypothetical as fanciful, but he posed one of his own to the government: If the last manufacturer of the lethal-injection cocktail decided to stop manufacturing that cocktail, could the government rely on the All Writs Act to force the company to keep making the drugs?

The obvious answer to this question is no. But the assistant U.S. attorney representing the government studiously avoided answering it for five excruciating minutes. She likely hesitated because the scenario exposes the breadth of the governments legal position. If the government can force Apple and any other tech companies to break into devices that theyve sold and no longer own or possess, what is the limit on the governments ability to conscript private parties into governmental service? The governments unwillingness to answer Judge Orensteins question suggests that the government doesnt believe that there is a categorical limit.

The second critical moment of the hearing came when Apples lawyer addressed the elephant in the room. Judge Orenstein asked whether it was worth fighting over the iPhone at issue, which runs Apples mobile operating system iOS 7, given that soon nearly all iPhones will run later versions of the software (iOS 8 and 9), which Apple cannot easily unlock. Apples lawyer responded with a key point: Its far from clear where the governments legal theory ends. In other words, if the government can compel Apple to unlock a device, why couldnt it compel Apple to engage in more insidious attacks on its users? It is true that iOS 8 and 9 are more secure than iOS 7, but could the government require Apple to send a malicious software update to a suspects phone that compromises that security in order to make the data accessible? Could it compel Apple to engage in so-called man in the middle attacks on its users end-to-end encrypted iMessages or Facetime calls?

These are troubling possibilities that the governments theory appears to contemplate. Of course, we dont think the All Writs Act allows the government to commandeer its citizens in that fashion. But even if it did, that sort of compulsion would be unconstitutional. We explained why in a friend-of-the-court brief that we filed in Apples case. Unfortunately, Judge Orenstein rejected the brief, saying that he was satisfied with Apples ability to represent itself. We hope that means that he will reject the governments radical legal theory without needing to reach the underlying constitutional questions.

We should know soon enough. Judge Orenstein said that he intends to rule quickly. So stay tuned.

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