Sunday, February 21, 2016

The FBI, Apple, and the Importance of Jurisdiction

Jurisdiction is important when dealing with the law.  Courts as a rule do not have the power to decide every issue brought before them.  A small claims court can’t decide a million-dollar contract dispute.  An Alaskan state court can’t evict a tenant living in Manhattan.  A federal court typically does not have jurisdiction over purely state law criminal prosecutions.  Jurisdiction, in other words, is extremely meaningful.  And jurisdiction just might play an important role in deciding the present dispute between the FBI and Apple about the San Bernardino shooter’s iPhone.

The scenario reads like a thorny law school exam fact pattern.  The FBI holds a seized iPhone used by one of the terrorists who killed 14 of his co-workers in San Bernardino in December 2015.  The phone belongs to his employer, which has given its consent to a search of the phone and its data.  The data on the phone is encrypted, and cannot be read by the FBI.  The phone is password-protected, and if the FBI makes more than 10 incorrect password guesses, there is a very strong danger that the current encryption key will be destroyed and the phone’s data will, for all practical purposes, become unrecoverable. 

Apple owns the phone’s operating system.  It is uniquely positioned to help the FBI by revising the phone’s software to disable the 10-or-dead feature.  The FBI has requested Apple’s help; Apple has refused, and the FBI has secured a court order directing Apple to assist the FBI.  Apple, in an open letter to its customers, indicated it will challenge the order, citing its concerns about building what it says is a currently-nonexistent “backdoor” into its iOS operating system that could compromise security for its millions of users worldwide. 

In its application to the court, the FBI argued that the proposed software would only be usable for this one iPhone, because it would be keyed to the specific hardware id associated with that iPhone.  Apple quite clearly disagrees: “But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.”

Apple’s concern for the privacy of its users appears to be reasonable.  If it is forced to develop software designed to defeat the 10-or-dead feature on this one iPhone, that software could work on any iPhone, provided that iPhone’s unique id is substituted for that of the phone used by the San Bernardino shooter – a relatively trivial change.  A flood of court orders compelling Apple to use the same software for other locked iPhones could follow.   

The dispute shines a spotlight on important privacy issues that affect all of us.  Tech companies and the government have been arguing for years about encryption.  The tug-of-war between the need to keep user information private and the government’s need to investigate crimes has been the subject of ongoing debate.  The recent revelations about the extent of warrantless government surveillance has shone a spotlight on what many believe are abuses by the government of citizen privacy, and has resulted in stronger encryption regimes for consumer communications devices and systems.

In the Apple case, the order sought by the FBI (read the FBI's application here) was signed the very same day the FBI asked for it, which suggests that the court simply accepted the FBI’s argument without giving it too much scrutiny.  (The order was sought ex-parte, without Apple’s participation.)  The FBI relies on the All Writs Act, a law dating from our nation’s infancy, to support its request.  The act is sort of a catch-all for federal courts, providing that “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.”  The government argued, and the district court agreed, that the act empowered the court to issue its order directing Apple to help the government defeat the 10-or-dead feature on the San Bernardino iPhone so that the government may attempt to crack the phone’s password. 

Apple has not yet filed its opposition to the court’s order.  There are a number of arguments it can be expected to raise; some of them were highlighted in its customer letter: “If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.”

One potential argument not mentioned by Apple is that the court’s grant of the FBI’s request is an impermissible application of the All Writs Act because the order was not “necessary or appropriate in the aid of” the court’s jurisdiction.  This argument formed the basis of the dissent to one of the key cases the FBI relies upon,  United States v New York Telephone Co., 434 US159 (1977)

In New York Telephone, the Supreme Court in a 5-4 decision held that the district court had the power to issue an order under the All Writs Act directing New York Telephone to lease certain phone lines to the FBI to permit it to secretly install a pen register to record phone numbers dialed by a suspected gambling operation in New York City.  In his dissent, Justice  Stevens argued that this was an improper extension of the act’s scope because the order requested by the FBI in that case was not one that would “be in the aid of [the court’s] duties and [the court’s] jurisdiction.”  434 US at 189.  “The fact that a party may be better able to effectuate its rights or duties if a writ is issued never has been, and under the language of the statute cannot be, a sufficient basis for issuance of the writ.” Id. (my emphasis).    

The following paragraph from the dissent could have been written to cover this very situation: 

Nowhere in the Court's decision or in the decisions of the lower courts is there the slightest indication of why a writ is necessary or appropriate in this case to aid the District Court's jurisdiction. According to the Court, the writ is necessary because the Company's refusal "threatened obstruction of an investigation . . . ."  Concededly, citizen cooperation is always a desired element in any government investigation, and lack of cooperation may thwart such an investigation, even though it is legitimate and judicially sanctioned.  But unless the Court is of the opinion that the District Court's interest in its jurisdiction was coextensive with the Government's interest in a successful investigation, there is simply no basis for concluding that the inability of the Government to achieve the purposes for which it obtained the pen register order in any way detracted from or threatened the District Court's jurisdiction. Plainly, the District Court's jurisdiction does not ride on the Government's shoulders until successful completion of an electronic surveillance.
Id. at 190 (my emphasis). 

Admittedly, this was the losing side’s argument in the New York Telephone case.  But it has the attractiveness of being rooted in the actual language of the All Writs Act.  Given recent revelations about the extent to which the government has abused the privacy rights of its citizens, Justice Stevens’s prescient concern in the New York Telephone dissent is apt today:  “Nevertheless, the order is deeply troubling as a portent of the powers that future courts may find lurking in the arcane language of Rule 41 [covering Search and Seizure] and the All Writs Act.”

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