I was a prosecutor in two states, and I founded the Internet & Computer Crime Division of one of the largest prosecuting agencies in the country. I have seen, and have been a part of, the advent and growth of the use of digital forensics in criminal investigations. And although I applaud the government’s efforts to stay current with technology to fight cyber-criminals and terrorists both domestic and abroad, I cannot, and do not, agree with the government’s efforts to force Apple to circumvent the security protocols on the iPhone. The government’s efforts are, at best, overreaching; at worst, they are a desperate and unabashed attempt to completely undermine significant privacy and security efforts of the private sector—efforts which, ironically, were undertaken in response to governmental overreaching and misconduct.
Apple has stated that the technology sought by the government doesn’t exist. So exactly when, in the course of modern American history, did the government obtain the power to force a private citizen (or a company, as the case may be) to create something that doesn’t exist? Can someone tell me where, in the annals of federal law, it says that the government can tell a person to sit down and come up with an invention that no one has seen before, for the sole purpose of enabling the government to enforce a law, or to conduct a more comprehensive investigation?
Do not tell me that the government has the power to do so by subpoena or warrant. It doesn’t. A warrant permits the search and seizure of existing material and property. A subpoena can force someone to divulge information about which the person has knowledge. But neither a warrant nor a subpoena can be used to force a person to create a new invention simply because the party issuing the warrant or subpoena desperately wants, or needs, the invention.
Similarly, a court has no inherent power to require a person to develop a new invention simply because the government would find the invention to be useful. Such power has never been granted or delegated to any U.S. court, federal or state, under any legal doctrine. Yet, the magistrate in California seems to believe he has such power—and that is extremely disturbing.
The government believes that the court has such power under the All Writs Act of 1789–a section of the law, written over two centuries ago, that grants federal courts with the somewhat ambiguous ability to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act is like artwork—different people will see different things in the language, and depending on your perspective, you may find that the Act supports the government’s position. But it doesn’t, and it shouldn’t.
The Act is not intended to instill god-like powers in a court; it is intended to ensure that the courts have the ability to enforce current laws in a timely and efficient manner through the issuance of writs. For example, if a necessary witness refuses to come to court, the Act gives a federal judge the ability to issue a writ of bodily attachment to force the person to appear. If a person is being detained unlawfully by the police, a federal court can issue of “Writ of Habeas Corpus” to force the police to release the person. There are a multitude of writs available to courts, but there’s no writ that can require Apple to make a programmer create never-before-seen and never-before-created code to break through its own security protocols.
The power of the government cannot be limitless, even if the purpose for which such power is sought is noble or righteous. And do not be misled by political pundits: This is not an issue of whether we need to do more to fight terrorism. Terrorism is simply the vehicle by which this important issue has been propelled into the limelight. This is an issue of privacy. It is an issue that forces us to question whether the government should have the power to compel the creation of intellectual property. Such power has never existed—and for good reason. Let’s keep it that way.