The SDK: The All Writs Act

As expected, my friends & family have been asking me what exactly is going on in the Apple debacle. There are articles everywhere, but this blog piece is written with an audience in mind which is neither technology nor legally savvy. Each section is a tad more complicated than the previous one. So if you reach your limit, don’t worry. You’ve already gotten the super basics even if you only read the first two sections (but I promise the rest is good too!). The first just clarifies what the DOJ and the FBI are.

Are the FBI & DOJ the same thing?
The FBI is the Federal Bureau of Investigation, and the DOJ is the Department of Justice. The Department of Justice is responsible for enforcing the U.S.’s laws, and the Federal Bureau of Investigation is part of the Department of Justice. There are some laws which the whole country has to abide by (federal laws), and some which only apply to a particular state (state laws). The FBI enforces the federal ones.

With Regards to the All Writs Act, The quick answer:

When you’re babysitting, if Mom hasn’t said otherwise, and your kid brother has the remote control and is watching wrestle mania, you can definitely order him to hand over the remote. So long as he doesn’t have to 3-D print a brand new one or anything. Then, even if Mom hasn’t said otherwise, it’s not so clear. Cue your kid brother tattling on you to Mom when she gets home.

For some reason, I seem to use parents as an analogy for the court fairly often. Perhaps it’s because people universally understand parents as arbitrators. Analogizing your boss might work too, but I’m sticking with parents. And for the sake of this analogy, I’m making you roughly 13. Though, because I know you’re probably an adult, when it comes time to actually show off your knowledge of the All Writs Act at the next cocktail party you’re at: replace “Mom” with “Congress” and “you” with “the court”, and consider “wrestle mania” to be worth invoking your babysitting powers to prevent from appearing on your television screen. That is, “wrestle mania” = “applicable area of law”. You fancy now!

Hear ye! Hear ye! This is how we’re going to decrypt iPhones two centuries from now!

The Somewhat More Involved Answer:
(courtesy of Kashmir Hill, who did an awesome job of explaining it)

“The All Writs what?
It’s the law that the DOJ is invoking to get Apple to help it out. It gives judges a lot of power to make special requests to aid government investigations. Former federal prosecutor Orin Kerr has a great post about it. Tl;dr: it’s the same law the government used in the 1970s to get a phone company to use a tool that recorded all the numbers someone dialed from their phone—which has since become a standard surveillance tool.” Apple’s battle with the FBI: All your questions answered [Kashmir Hill, Fusion]

Note: Yes, Orin Kerr’s article is, in fact, awesome. However, while I do encourage you to check out the above article in its entirety since it’s written in a very conversational style which makes it very approachable, Orin Kerr’s article may be more involved than you have time for.

Hang In There!
In case it comes up, I don’t want to leave you hanging at the aforementioned cocktail party. Just for the record, here are the actual things the court has to consider before it can make one of those special requests. The bold bullet headings are the elements as explained by The Daily Dot [The All Writs Act, explained, William Turton]. Both the regular and bold text are me.

  • The All Writs Act is only applicable if no statute, law or rule on the books to deal with the specific issue at hand.

Mom didn’t say anything about whether you could make your kid brother hand over the remote control so that you could watch Full House, now did she? Imagine you called your mom & told her your kid brother refused to hand over the remote: The DOJ did the legal equivalent by filing a “motion to compel” Apple to comply with the DOJ’s order.
To quote the “not to state the obvious, but” heading in the motion, “No statute addresses data extraction from a passcode-locked cell phone.” I find that heading a rather blunt assertion, but for now it serves to at least show the basic premise behind the All Writs Act.

  • The business in question (Apple) has some connection to the investigation.

Your kid brother got control of the remote. Without the power to order him to hand it over, you’re never getting ahold of that remote. The iPhone is a special kind of super password protected, so the DOJ can’t get in without Apple’s help (that “special kind” is otherwise known as iOS 9).

  • There are extraordinary circumstances that justify the use of the All Writs Act

Your kid brother wanted to watch wrestle mania. If those aren’t extraordinary circumstances, you don’t know what are. It’s not like you’re going to order him to hand over the remote every single time you want to watch TV. Only when he wants to watch wrestle mania. Or maybe the next time the Super Bowl is on. Or maybe just when a commercial that shows someone playing a sport comes on. You’ll figure out the details later. (This is one of the biggest complaints in the privacy world).

  • The All Writs Act only applies if compliance is not an unreasonable burden.

It’s a plain old remote control, why is he being so difficult? Now, if he had to 3-D print you a brand new one because the remote control was magical and only worked for your kid brother, that would be a different story. (Is ordering Apple to create software that previously didn’t exist more like handing over a remote control or 3-D printing a new one?)

What It All Comes Down To
Yes, while all of these elements are key issues in the Apple v. FBI case (officially “In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203“), those last two go to the core of the controversy.

Ready For More?
Check out my post The SDK: What Anyone Who’s Anyone Has To Say About the All Writs Act, which is formatted like one of my standard SDK posts, but where I share a few articles/posts that you likely didn’t come across in your everyday standing-in-line Internet browsing, but that I think make important points worth being aware of.

Update – They Got In:
U.S. Says It Has Unlocked iPhone Without Apple [The New York Times, MARCH 28, 2016]
“The Justice Department said on Monday that it had found a way to unlock an iPhone without help from Apple, allowing the agency to withdraw its legal effort to compel the tech company to assist in a mass-shooting investigation.”

For even more discussion of this controversy that won’t be resolved anytime in the near future, check out my post But Apple is Never Wrong! Playing Devil’s Advocate.

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