A court order requiring Apple to create a way to help law enforcement get access to a terrorist's smartphone amounts to an "unprecedented" stretch of an antiquated law — one that is likely to spark an epic fight pitting privacy against national security, legal scholars said Thursday.
Typically, law enforcement has filed for warrants under seal, and courts have issued orders under seal, to protect the confidentiality of ongoing criminal investigations.
But a federal judge in New York decided last fall to unseal portions of such a case. It revealed that Apple had turned over information to law enforcement about 70 times in recent years, according to the government, based on court orders citing an obscure 1789 law called the All Writs Act. The act, passed in the judiciary's infancy, allowed courts to issue orders if other judicial tools were unavailable.
This week's court order was different from those issued in the past, however. It requires Apple to create new software, experts said, not provide technology already at hand.
"This is a new frontier," said Jennifer Granick, director of civil liberties at Stanford Law School's Center for Internet and Society. "I know of no other statutory provision that would arguably create an obligation for device manufacturers to help out the government."
Apple may not have fought orders in the past because "it was easy for Apple to give the data," she said.
"But the architecture of the phones changed," she said. "This is about Apple creating a new forensic version of its software to do the job the FBI wants it to do."
Apple was caught off guard by the government's decision to go public with its request. Legal experts said the government probably decided to file publicly because it wants a debate on the issue framed by a case that poses strong emotions and fears.
The company has hired Ted Olson and Theodore J. Boutrous Jr., two of the lead lawyers who successfully challenged California's previous ban on same-sex marriage.
They are expected to argue the order violates constitutional provisions as well as the All Writs Act and would create bad public policy.
Law enforcement has relied on a 1977 Supreme Court ruling that said the All Writs Act could be used to compel New York Telephone Co. to provide technology to enable investigators to track calls being made in a gambling operation.
The phone company was a heavily regulated public utility and already had the technology, key differences from the Apple case, experts said.
UC Irvine School of Law Dean Erwin Chemerinsky said a carefully drafted federal law giving law enforcement the right to get around encryption in certain compelling situations probably would be constitutional.
But he doubted a court could force a company to write software. "You can't subpoena or get a warrant for something that doesn't exist," he said.
The case, which will be heard in the magistrate's courtroom next month, will then go before a federal district judge.
If appealed, the case will be heard by the U.S. 9th Circuit Court of Appeals and possibly the U.S. Supreme Court.
Although the case could be fast-tracked, Chemerinsky said the Supreme Court probably would not want to hear one that poses such novel issues without a hearing by an appeals court.
"Context is everything," he said. "I don't think the courts have the authority to tell someone to write software, but if the reason is to prevent a dirty bomb from exploding tomorrow, the context would matter a lot."
David O'Brien, senior researcher at the Berkman Center for Internet and Society at Harvard University, said Apple is likely to argue that the government's demand would place an unreasonable burden on the company.
But the government can counter that public safety is at stake.
"It's a case of domestic terrorism, an attack that resulted in the death of more people than any other case since 9/11," O'Brien said. "There are a lot of emotions behind this that are fueling the government's argument of why we should make an exception this one time."
USC law professor Valerie Barreiro agreed with other experts that the government's request was unprecedented. The All Writs Act says it cannot be used in a way that is not harmonious with the principles of the law, she said.
"As it goes through the appellate process, I do not think the order will stand," said Barreiro, interim director of the law school's Intellectual Property and Technology Law Clinic.
In the New York case, U.S. District Magistrate Judge James Orenstein balked at ordering Apple to unlock a customer's smartphone. He wanted to know first whether the assistance sought by the government was technically feasible and whether the proposed order would be unduly burdensome.
Apple had the technology to give the government, but the criminal defendant in the case later confessed and opened his phone for investigators.
Both Apple and the government have asked Orenstein to rule anyway.
In an order last fall, Orenstein noted that the White House and Congress have considered updating a law to require technology companies to provide the means of entering encrypted smartphones but "have not reached a consensus that such action is warranted."
"Congress has failed to act on concerns expressed by the Justice Departmentand the FBI about the lack of such legislation," Orenstein wrote, "and several of its members have introduced legislation to prohibit exactly what the government now asks the court to compel."
Lee Tien, a senior staff attorney at the Electronic Frontier Foundation, said as the California case progresses, the public may learn much more about law enforcement getting court orders to force tech companies to help the government defeat privacy barriers.
"A lot of this stuff does not see light of day," said Tien, who added that he has spoken to Apple about filing an amicus brief in the case. "I don't know that there aren't 17 other cases where the DOJ has gone to judges and got what they wanted regarding Google or Samsung."
He said the fact that prosecutors haven't asked to seal the filings in the current case indicated that the government, as much as Apple, wanted a public debate over the necessity or propriety of ways around phone encryption.
"You make it a campaign issue and candidates weigh in, feel like they have to support the FBI against Apple," he said. "By making it public, more people may have to take a stand, win or lose in the courts."
In a report issued in November, the Manhattan district attorney's office said there were 111 cases in the preceding year in which prosecutors weren't able to access a phone for which they had obtained a search warrant.
The devices were running the latest Apple operating system with enhanced encryption.
The cases included homicide, sexual abuse of a child and sex trafficking, according to the report.
"The result will be crimes that go unsolved, harms that go unanswered, and victims who are left beyond the protection of the law," the report said.
With the new encryption, smartphones have become even more inaccessible for law enforcement than people's homes or bank vaults, the report said.
It argued that companies' cooperation would not lead to repressive regimes demanding the same access to commit human rights violations.
"If Apple and Google were to cater to the whims of repressive countries, it would be because they chose to do so, not because they were forced to," the report said.
Stanford's Granick said Apple's position probably would prevail eventually.
"I don't think we are prepared, for a variety of reasons, to say to all our industries that they are going to have to create forensic tools for the government," she said.
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