The 227-year-old Law at the Center of the Encryption Debate

One of the many ways the internet is changing our brains includes our perception of our own privacy. What’s ironic is that now, in our space-age internet-information age, our legal and federal system is using precedents for our behavior that were set over two centuries ago

A law created at the same time as federal courts themselves is now at the center of one of the most public encryption debates to ever take place.

Namely, the debate between Apple CEO Tim Cook and the FBI, who are requesting via federal magistrate that Apple write custom software that will allow the FBI to help break into a phone it seized from one of the terrorists of the San Bernadino terrorist attack.

tim cookApple has stated that it is unwilling to write such a software, as it would constitute purposefully creating a serious security flaw in its own privacy protections and make vulnerable the millions of customers that rely on Apple encryption for their privacy.

Now the government has brought into play the All Writs Act, a part of the Judiciary Act of 1789 that actually created the court system. A “writ” is a formal order. To bring the age of the law further into perspective, George Washington signed it into law.

The entirety of the statue is as follows:

“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 nice may be issued by a justice or judge of a court which has jurisdiction.”

According to this act, courts have the power to issue orders that do not fall under a pre-existing law. The act serves as a procedural tool for courts dealing with strange issues that haven’t been covered by laws yet, which definitely made sense when the justice system and entire country were new and forming. However, some believe that this law should not be used to allow the government to go against existing laws or take action when there’s no laws today.

After all, as one gizmodo writer put it, “A judge can’t issue an order for Tim Cook to execute Jony Ive or to move to a condo in Yonkers. It’s not that broad.”

According to a precedent set by the Supreme Court in 1948, the law is “a legislatively approved source of procedural instruments designed to achieve ‘the rational ends of law.'”

The act is not used frequently in modern courts, and when it has surfaced in some military courts recently, the courts overwhelmingly ruled that they did not have authority under All Writs.

fbiiiNowadays, the act is generally used to “effectuate” a search warrant, as the FBI is attempting to use it now. The FBI wants to search that San Bernadino terrorist’s phone, and it’s trying to use All Writs to force Apple to help.

This has worked before. All Writs has already been used to force Apple to help law enforcement unlock iPhones, in fact that has happened 70 times.

Unfortunately, there is only one judge that questions this house of All Writs. When the government tried to get Judge Ornstein to authorize surveillance using All Writs in 2005, the judge said that that interpretation “invites an exercise of judicial activism that is breathtaking in its scope and fundamentally inconsistent with my understanding of the extent of my authority.” Ornstein has questioned whether All Writs was appropriate for Apple’s San Bernadino encryption issue as well.