Not too long ago, many government agencies requested and received assistance from Apple Inc. (“Apple”) in decrypting information on iPhones. The demands increased rapidly, making it necessary for Apple to create a “waiting list” to handle the requests. The high number of demands required Apple to not only be a tech company which designed, developed, and sold consumer electronics, computer software, and online services, but also an arm of the government which bypassed security features put in place to protect the consumers by exploiting its flaws.

Government agencies have long set their eyes on regulating advancements in cryptology by technology companies. The motivation behind calls for regulation is to maintain an avenue where law enforcement agencies could access personal data. Tech companies also made sure their voices were heard by asking President Obama to turn down any legislation altering the companies’ security efforts that made it to his desk. Initially, the President decided that it was best not to push for such legislation. To date, Congress has not created legislation altering advancements in cryptology either.

After some time, Apple felt it had been put into uncomfortable position on too many occasions and was forced to find a way to avoid similar situations in the future. In light of major incidents of security vulnerability exposures, many entities, including government agencies, made improvements to increase tech security. Apples improvements, however, made it impossible for the company to extract data from iOS devices for themselves, or government agencies. This change prompted government agencies to get creative in their fight against tech companies and their advancements in personal data security. They turned to the All Writs Act, a federal statute originally created in 1789, three years before the adoption of the Fourth Amendment.

What is the All Writs Act?
Title 28, section 1651 of the United States Code, commonly known as the All Writs Act (“AWA”), allows the Supreme Court and all courts established by Act of Congress to issue all writs necessary or appropriate in the aiding of their respective jurisdictions and agreeable to the usages and principles of law.

A writ is an order issued by a court requiring something to be done, or giving an individual or entity the authority to do a specified act. It is important to note, however, that courts do not have the power to fashion any writ they deem desirable; instead, courts must look to the usages and principles attached to the writ requested. Jones v. Lilly, 37 F.3d 964, 968 (3d Cir. 1994). Pursuant to the Federal Rule of Civil Procedure, Rule 52, courts must make findings of fact and state reasons for issuance of a writ. Ben David v. Travisono, 495 F.2d 562, 564 (1st Cir. 1974). A three-factor test must be applied to test the applicability of the All Writs Act. U.S. v. New York Telephone Co., 434 U.S. 159 (1977). Those factors are 1) the party ordered to perform an action cannot be too far removed from the case, 2) the government’s request cannot impose an undue burden on that party, and 3) the party’s assistance is necessary. In the absence of an express finding of exceptional circumstances, neither a magistrate nor a district court should make an order under the All Writs Act. Pa. Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 35, 43, 106 S. Ct. 355, 357 (1985).

An entity or individual, even if not a party to the original action, is deemed not too far removed and therefore subject to the power of AWA if they are in a position to frustrate implementation of court order or proper administration of justice, even if they have not taken any affirmative action to hinder justice. United States v. N.Y. Tel. Co., 434 U.S. 159, 173-74, 98 S. Ct. 364, 373 (1977). A 9th Circuit Court has previously deemed a party “in a position to frustrate implementation of a Court’s order” when it refused to cooperate with the court’s order; however, among other facts of that case was probable cause that the party’s facilities were employed to facilitate a criminal enterprise on a continuing basis. In re Application of United States for an Order etc., 616 F.2d 1122, 1129 (9th Cir. 1980). These facts are distinct from those of the San Bernardino case involving the FBI and Apple (“San Bernardino”).

In the United States v. N.Y. Tel. Co., the Court decided that an order directing the assistance of a telephone company was authorized by the All Writs Act on the grounds that (a) the company, whose facilities were being employed in the suspected criminal activity, was not a third party so far removed from the underlying controversy that its assistance could not be permissibly compelled, (b) the company, which regularly employed pen registers itself in connection with its business operations, had no substantial interest in not providing assistance, (c) the order provided that the company be fully reimbursed, (d) compliance with the order required only minimal effort on the company’s part and no disruption to its operations, and (e) without the company’s assistance, the surveillance could not be successfully accomplished. United States v. N.Y. Tel. Co., 434 U.S. 159, 174-75, 98 S. Ct. 364, 373 (1977).

In contrast to United States v. N.Y. Tel. Co., the court in San Bernardino did not order Apple to do something it regularly does. Instead, it ordered that Apple create an operating system, which currently does not exist, designed to undermine the security features and other components of the iPhone. Apple has a substantial interest in not providing assistance; it defeats one of the key features of its product, a feature which tied to Apples profitability. Compliance with the order would take much more than minimal effort. Unlike in United States v. N.Y. Tel. Co., the court has ordered apple to create an entire ready-to-run bundle, which would likely cause disruption to its operations. This could be burdensome on apple. If it has not had the opportunity to completely outline the burdens, a hearing should be held on the issue of burdensomeness before Apple is compelled to provide assistance to ensure the order is in line with 5th Amendment due process requirements. In re Application of United States, 610 F.2d 1148, 1156-1157 (3d Cir. 1979).

The Government’s past attempts to use the All Writs Act
In a separate case in New York involving the federal government and Apple, Judge James Orenstein, who has previously ruled against a government request for an order pursuant to the All Writs Act, expressed his concern with the appropriateness of compelling Apple to comply with the government’s request to disable the security features of its product, and question if the use of the All Writs Act was the government’s last hope for relief in an area where Congress had failed to act. The government, as it has done in the San Bernardino case, responded by characterizing Apple’s argument of the undue burden and likelihood of negative implications resulting from an order to comply with the government’s request as un-American and a failure to complete one’s civic duty. The government’s belief that challenges to its position, no matter if the party has a right to such challenge via application, appeal, etc., is a lack of patriotism is scary, to say the least, and is inconsistent with the principles of the American justice system.

A decision has not yet been made in Judge Orenstein’s court. The defendant in this case accepted a guilty plea which decreased the urgency of a decision. However, both Apple and the government have expressed a desire for Judge Orenstein to render a decision as they believed the issue was not made moot as a result of the plea. The order in the San Bernardino case came before Judge Orenstein made a ruling, and the background of the case may have caused it to overshadow the court in New York. However, the major issues remain the same.

Relevant questions
The San Bernardino Case has MAJOR implications. The final outcome will not only set precedent within the Courts, but also may impact tech companies and their ability to make advancements in security. This case may also have residual effects such as limiting the scope of constitutional privacy rights. Contrary to the position taken by government agencies, Apple’s effort to define the line between security and privacy by challenging the court’s order is an exercise of its civic duty. It has led to public discussion, causing many to attempt to define the line between security and privacy. The failure to take this opportunity to address the issues of privacy and security would be un-American.

The following are questions and concerns that are relevant to this issue and should be answered before the Court proceeds further:

• Has the court in the San Bernardino case made findings in accordance with FRCP 52?
• Is Apple truly in a position to frustrate implementation of the courts order or proper administration of justice?
• Does the governments request impose an undue burden? 
• Are there alternative remedies to the Court’s order that may accomplish the same goal? Is Apple’s assistance truly necessary?
• Does the Court’s order violate Commercial Speech guaranteed by the First Amendment?