From Breaking Down Doors to Building Back Doors, 0117 SCBJ, SC Lawyer, January 2017, #34

From Breaking Down Doors to Building Back Doors

Vol. 28 Issue 4 Pg. 34

South Carolina BAR Journal

January, 2017

“Still, as in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.” Babington v. Yellow Taxi Corporation, 250 N.Y. 14 (1928).

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Riley v. California, 573 U.S. _____ (2014).


The FBI seized an Apple iPhone 5c held by San Bernardino County that was used by one of the suspects in the San Bernadino bombing. The seizure of the iPhone itself was not at issue, having been accomplished pursuant to a validly issued warrant.

That iPhone (and all Apple devices running IOS 8 and beyond) offers users the ability to "lock" the device (and encrypt all the (a "key" of sorts). In addition, the iPhone has two additional security features designed to make it difficult to unlock the device: 1) after too many incorrect passcode guesses all of the data on the iPhone will be erased, or "wiped"; and 2) establishing a mandatory delay between passcode guesses.

Because the FBI didn't know the passcode and could not obtain it,1 it turned to the All Writs Act (AWA),2a law that allows a federal court in appropriate circumstances, to attempt to execute the warrant. In particular, the FBI sought to require Apple to write software that would enable the FBI to bypass the security features and "brute force" the passcode to the iPhone by guessing potential passcodes rapidly and in an automated way. In practical terms, the FBI wanted Apple to create a software workaround (a/k/a "backdoor" or "master key") to allow the FBI to defeat the iPhone's encryption and access information on and available from the device. The dispute presented what appeared to be an odd pairing: an old statute (the AWA) and a new technology (presumably "unbreakable" encryption). Moreover, both sides cited a case—United States v. New York Telephone3—decided in 1977 (eons ago in the world of technology) in support of their positions. So how is the AWA (and not a later statute enacted by Congress) in play in a case involving a technology tool that could not have been imagined by the Founders? And why has the AWA not been implicated in a technology context for almost 40 years?

It turns out that the application of the AWA relies heavily on what Congress and the courts have done (and not done) over the years in establishing limits (framed by the Fourth Amendment right to be secure in one's home and person) on law enforcement power to search and seize. And new technologies (like the telephone, telegraph and various computer tools) have consistently presented policymakers with the very difficult task of weighing law enforcement needs against privacy interests.

Apple's device encryption (a relatively new technology tool) raised a difficult question: how to strike a balance between privacy and law enforcement's need to investigate crimes. But it is a difficult question that has been asked many times.

Similarly, the technology at issue is not entirely new to the privacy/law enforcement debate. It is true that "unbreakable encryption" (think of a lock that can't be picked) is a new wrinkle in the application of the AWA. But the topic of encryption has been considered and addressed by Congress on more than one occasion.

This article will briefly touch on some of the most significant points at which Congress and the courts have struggled to ft new and evolving technology tools into the balance. The history of the debate shows that new technology tools almost always create hard cases, because these tools increase both law enforcement capability to get information, and the power to protect information.

The issues raised in the FBI-Apple dispute went unanswered, because the FBI withdrew its AWA request, but these and other questions will persist as technology continues to evolve and law enforcement needs also change.

The Fourth Amendment and the AWA: Search Warrants and Executing on Them

The Fourth Amendment and the AWA were a reaction to the British use of writs of assistance (also called "writs of aid"), through which the sovereign 'would authorize wide-ranging searches of anyone, anywhere, and anytime without being suspected of a crime.'4 As Justice Roberts remarked in Riley, writs of assistance helped spark the Revolutionary War: Our cases have recognized that the Fourth Amendment was the founding generation's response to the reviled "general warrants" and "writs of assistance" of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that "[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance" (citations omitted). According to Adams, Otis's speech was "the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born" (citations omitted).

The "unrestrained" searches of "anyone, anywhere, and anytime without being suspected of a crime" allowed by the British writs of assistance would not continue in the new United States. Accordingly, the language of the Fourth Amendment set a constitutional limit on searches, seizures and surveillance:

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.

The Fourth Amendment framework, as shaped by Congress and federal courts, continues to be applied to require that searches be reasonable.

Likewise, the AWA provides for a much more circumscribed writ power, one that is triggered only when the predicate Fourth Amendment warrant standard has been met: [A federal court] may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

The AWA does not provide any stand-alone jurisdiction, but authorizes only those writs "in aid of" existing jurisdiction.5 "The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling."[6] For example, the AWA cannot supply a federal court with authority to exercise removal...

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