We are at an inflection point. What is the power of a search warrant? Is it legal to intentionally create a space beyond the power of that warrant? And is it legal to force a person/company to create a new way into a product they created?
The modern electronic communication space pits two legal concepts from 1789 to determine privacy rules in 2016.On one side is one of the most well known rules of the land, the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And the All Writs Act:
(a) 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.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
The general rule for search is that barring some exceptions if the government wants to search a person, their papers, their home, or person, they needed a search warrant. There has always been a special level of protection that was provided to a house. There has long been a presumption that any search of the house of an individual required either the consent of the individual (or a person with the right to admit someone into the house) or a search warrant.
Until 2014 in Riley v. California there was no similar requirement for a cell phone. A cell phone was considered to be like a wallet or purse. An inventory search of a person when they are arrested, gives the police the right to inventory the contents of that wallet or purse.
Cell phones were a treasure trove for the police, “inventorying” pictures and text messages could not only build the case against the person arrested, but against their friends and associates. In Riley, the Supreme Court determined that cell phones contain so much intimate information that they are much more like a home, than a wallet.
Partially, in reaction to the revelations of Edward Snowden, and an attempt to compete in international markets, electronics manufacturers began to create stronger encryption, and more secure phones. This new level of strong encryption makes it nearly impossible to get into a locked cell phone. The government addressed this issue in Riley, saying that the encryption along with the time it takes to get a warrant could make it too easy to destroy the information on the phone. The Court did not find this possibility to be sufficiently persuasive to allow a warrant exception.
Having a phone with strong encryption can potentially make it warrant proof. It would be like hiding evidence in a place where the only way the government could get to it would destroy the evidence, like a sealed vault in a heist movie. Any attempt to access the contents could destroy them.
Since a search warrant is ineffective against a “black box vault” like a top of the line modern cell phone, the government had to explore other options. Thankfully for them, they were able to find a potential skeleton key law from 1789, the All Writs Act.
Using this law, the FBI, and the US Government asked a court to issue a writ (a court order) to force Apple to create a piece of software that would prevent an iPhone from automatically wiping its memory after too many attempts to unlock.
This is the legal question that needs to be addressed. Under current law, is it legal for the government to force a person or company to speak against their will? Computer code is generally considered speech, and falls under First Amendment protection. There is a long tradition in this country of not forcing speech, even if it is self incriminatory in nature. It is not at all clear that the code Apple is being asked to create would undermine security in newer iPhones since the phone in question is an iPhone 5C.
The larger legal issue is if a court decides that the All Writs Act can force code for one phone, then that rationale will spread to more and more phones. The limiting principle is what is agreeable to the usages and principles of the law.
In another case of the FBI asking Apple to unlock a phone, and Federal Magistrate Judge ruled that the All Writs Act does not apply where Congress had the opportunity to act. In the eyes of the court in that case Congress could have acted proactively to say that companies must allow for a back door to access phones. The failure to do so, does not give the courts the right to step in to that open space.
While there is no law against making a black box safe. A safe like that would be prohibitively expensive. What terrifies law enforcement, and potentially a large section of the population, is that these black box safes are in the pockets of most people you see on the street. That much information hidden from the reach of law enforcement can rapidly become a block to effective criminal investigations.
Both of the laws that are at issue here are from 1789. It is time for the people to decide how much privacy we want. Unless new laws are written, the government most likely cannot force a company to unlock a device.