The FBI and Apple are fighting over modern technology using a very old law. A 227-year-old statute, created at the same time as the federal courts themselves, is now at the center of a showdown about privacy.
The FBI wants Apple to write custom software that will help the FBI break into a seized phone. Apple doesn’t want to do that, because it would be creating a serious security flaw in its own privacy protections, a flaw that could be exploited to hurt its millions of customers. Depending on how the All Writs Act is interpreted by a judge, Apple may have to comply.
So what is the All Writs Act? “Writs” is just an old-timey word for “formal order.” It was part of the Judiciary Act of 1789, which created the federal court system. George Washington signed it into law. It’s Founding Fathers-level old.
Old, but not long. This is the entirety of the statute giving Apple so much grief:
(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 nisi may be issued by a justice or judge of a court which has jurisdiction.
(June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, § 90, 63 Stat. 102.)
The All Writs Act gives courts power to issue orders that do not fall under a pre-existing law. It provides a sort of interstitial power,and serves as a procedural tool for courts dealing with odd and miscellaneous issues that haven’t been covered by other laws yet. (The legalese is casus omissus.)
You can see how All Writs made sense to bust out when the justice system was new and full of holes. And you can see how it is ripe for misuse today. It’s law that, if interpreted broadly, gives judges the court-order version of a blank check.
This does not mean a court could use All Writs as justification to create an order that goes against the law or has nothing to do with 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. A 1948 Supreme Court ruling, Price v. Johnston, explains how All Writs functions as a complement to the rest of the law, describing it as “a legislatively approved source of procedural instruments designed to achieve ‘the rational ends of law.’”
Yet despite these limitations, it’s still a powerful tool. One of the turning points for All Writs came in 1977. The Supreme Court ruled in favor of the government when it used All Writs to compel a telecom company to help it conduct surveillance to make a racketeering sting. And once the Supreme Court permitted All Writs as a way to compel a pen register, lower courts used it in similar ways.
All Writs is not used frequently in modern courts. There have been some high-profile “uses” of All Writs in military courts in recent years, but the courts have argued that they did not have authority under All Writs. Here’s why Chelsea Manning trial couldn’t have public access, for instance, according to Just Security:
In the Bradley Manning court martial proceedings, for example, the highest court in the military justice system – the Court of Appeals for the Armed Forces (CAAF) – held that it lacked the authority under the All Writs Act to grant extraordinary relief to protect the First Amendment right of public access to criminal trials identified by the Supreme Court in Richmond Newspapers and its progeny.
As Popular Mechanics notes, when All Writs is used in modern times, it is often to “effectuate” a search warrant. In this Apple/FBI situation, this is how it’s being used. The FBI wants to search a phone, and it’s using All Writs to make Apple help.
All Writs has been used to compel tech companies to help the government decrypt devices, so this certainly isn’t a huge leap. All Writs has already been used to compel Apple to help law enforcement unlock iPhones. A United States Attorney recently said that the government used All Writs to compel Apple to unlock iPhones 70 times. In 2014, for instance, Judge Gabriel Gorenstein used All Writs to compel an unnamed tech company to unlock a phone, and cited that 1977 Supreme Court case while outlining why it made sense.
The bad news for Apple: Only one judge has questioned All Writs in these cases.
In 2005, Judge James Orenstein dismissed the government when it tried to convince him he could use All Writs to authorize surveillance, saying that this sort of All Writs 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.” And in 2015, Orenstein even questioned whether All Writs was appropriate for compelling Apple. “The question becomes whether the government seeks to fill in a statutory gap that Congress has failed to consider or instead seeks to have the court give it authority that Congress chose not to confer,” he wrote.
(Getting our privacy potentially f#@ked isn’t funny, but it is excellent that these judges are named Orenstein and Gorenstein. Petition to get them a reality television program, like Judge Judy, only Judge Orenstein & Gorenstein, sort of a Siskel and Ebert type situation.)
The judge who gave this week’s court order, US Magistrate Judge Sheri Pym, has given Apple five days to respond to the request. Now, remember that 1977 Supreme Court case that I described as a “turning point?” That case determined that third parties (like Apple) can assist the government, if certain conditions are met. If it is “unreasonably burdensome” for that third party, it doesn’t have to help. So Apple needs to persuade Pym that creating custom malware is an undue burden on Apple. If it does, there’s a chance she could decide that All Writs won’t fly in this case.
If she decides in favor of the government, however, this case will set a very serious precedent that will encourage agencies to pursue court orders to compel tech companies to cooperate, even if that cooperation means forcing companies to create security backdoors that undermine the purpose of the products they create.
http://gizmodo.com/the-227-year-old-statute-being-used-to-order-apple-into-1759736160
So, it is true, the founders starting violating the Constitution before the ink was dry.
You got that right.
Also, I once read that you can not cite any law from before the U. S. bankruptcy in 1933.
Why not apply the fourth amendment instead of a 227 year-old statute?
Because Apple doesn’t really want to win the case. They want to appear as if they’re concerned with their customers’ privacy, but they’re Zionists, so they’ll support the spying, and deceive their customers about it.
You GOT IT !!!
It irks me to no end that so many a-turn-on-mes have told me that the court will NOT hear anything before Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (There is no federal general common law.); http://laws.findlaw.com/us/304/64.html … but at the very same time, out of the other side of their mouth they admit to: What Has Happen to Federal Jurisprudence, 24 ABA Journal 421 (Schweppe, 1938) (The point is that, notwithstanding an occasional contrary voice, raised without considering the question in its broadest implications, there is a federal common law recognized by the Constitution, just as the Constitution recognizes general principles of equity jurisprudence derived from the High Court of Chancery of England, and not from the local conceptions of equity existing in the several states, and just as the Constitution has adopted the rules of the general maritime law.); [Cf. Hutcheson, The Common Law of the Constitution; Southern Pacific Railroad v. Jensen, 244 U.S. 205, 37 S.Ct 524 (1917); http://laws.findlaw.com/us/244/205.html ]
N.B. Constitution of the State of Oregon, Article 18, Section 7 (Former laws continued in force) (All laws in force in the Territory of Oregon when this Constitution takes effect, and consistent therewith, shall continue in force until altered, or repealed.); http://bluebook.state.or.us/state/constitution/orig/const.htm
ORS 174.030 (Construction favoring natural right to prevail) (Where a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to prevail.); http://landru.leg.state.or.us/ors/174.html
Cf. Barke v. Maeyens, Jr. M.D., 176 Or App 471, 31 P3d 1133 (2001) (“[t]he legislature lacks authority to deny a remedy for injury to absolute rights that existed when the Oregon Constitution was adopted in 1857.” Id. at 119, citing Mattson v. Astoria, 39 Or 577, 580, 65 P 1066 (1901).” http://www.publications.ojd.state.or.us/docs/A111121.htm; accord Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001) (As we have explained, the history of the remedy clause indicates that its purpose is to protect absolute common-law rights respecting person, property, and reputation, as those rights existed when the Oregon Constitution was drafted in 1857. This court has stated that the guarantee of remedy by due course of law for injury to person, property, or reputation “is one of the most sacred and essential of all the constitutional guaranties” and that “without it a free government cannot be maintained or individual liberty be preserved.” Gearin v. Marion County, 110 Or 390, 396, 223 P 929 (1924). This court also has stated that the purpose of the remedy clause is to make the common-law maxim that there is no wrong without a remedy “a fixed and permanent rule of law in this state.” Platt v. Newberg et al., 104 Or 148, 153, 205 P 296 (1922). Those statements reflect this court’s understanding that certain common-law rights are absolute rights that must be protected from infringement. … See Stevens, Sources of the Constitution of the United States at 34 (“[The American Revolution] was fought on the part of the colonists in defense of what they held to be their rights as men of the English blood.”); Report of the Committee Upon the Duty of Courts to Refuse to Execute Statutes in Contravention of the Fundamental Law, 38 Report of New York State Bar Assoc, 230, 238 (1915) (“[T]he American Revolution was a lawyers’ revolution to enforce Lord Coke’s theory of the invalidity of Acts of Parliament in derogation of common right and of the rights of Englishmen.”). http://www.publications.ojd.state.or.us/docs/S44512.htm
United States F. & G. Co. v. Bramwell, 217 Pac. 332 (Or. 07/10/1923) aff’d. Shasta View Irrigation District v. Amoco Chemicals Corp., 329 Or 151, 986 P2d 536 (1999) (The common law of England … as it existed at the time of the American Revolution as far as it was general and not incompatible with the nature of our political institutions, or in conflict with the Constitution and laws of the United States or of Oregon has been adopted as part of the law of the state, in view of Article 1 Section 2, of the Organic Law of the Civil Government of Oregon, Adopted July 26, 1845, and of Constitution of 1857, Article 18, Section 7.); http://159.121.112.45/S44723.htm
It must be conceded that there are such rights in every free government beyond the control of the state. Citizens Savings and Loan v. Topeka, 87 U.S. (20 Wall.) 655, 662 (1874) http://laws.findlaw.com/us/87/655.html ; aff’d. Hurtado v. California, 110 U.S. 516, 536, 4 S.Ct. 111 (1884) http://laws.findlaw.com/us/110/516.html
Van Horne’s Lessee v. Dorrance, 2 U.S. 304, 310 (F.Cas.) 2 Dall. 304 (1795) (From these passages it is evident; that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects, that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry. The preservation of property then is a primary object of the social compact, and, by the late Constitution of Pennsylvania, was made a fundamental law.); http://www.justia.us/us/2/304/case.html
Robin v. Hardaway, 1 Jefferson 109, 114, 1 Va. Reports Ann. 58, 61 (1772) aff’d. Gregory v. Baugh, 29 Va. 681, 29 Va. Rep. Ann. 466, 2 Leigh 665 (1831) (This is the case of our tributary and friendly Indians, whose liberty could not be invaded by any act of Assembly, without committing so fundamental a violation of these treaties, as would dissolve the union or confederacy, and restore them again to their natural independence. As little could the wars we waged against others of them, justify the reducing the captives to slavery. Because all such wars, whether we or they commenced hostilities, were just on their part, entered into pro aris et focis, to defend from the invasion and encroachments of hostile strangers, that native soil in which the God who made had planted their fathers, and said to them, ‘over this thou shall have dominion.’* So that if we apply these acts of our legislature to the captives from hostile tribes of Indians, they cannot be justified on the rights of war; if to those in amity with us, they are infractions of the federal as well as natural rights of those people. No instance can be produced where even heathens have imposed slavery on a free people, in peace with them. The Indians of every denomination were free, and independent of us; they were not subject to our empire; not represented in our legislature; they derived no protection from our laws, nor could be subjected to their bonds. If natural right, independence, defect of representation, and disavowal of protection, are not sufficient to keep them from the coercion of our laws, on what other principles can we justify our opposition to some late acts of power exercised over us by the British legislature? Yet they only pretended to impose on us a paltry tax in money; we on our free neighbors, the yoke of perpetual slavery. Now all acts of legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void. The laws of nature are the laws of God; whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice. And cited 8 Co. 118. a. Bonham’s case. Hob. 87; 7 Co. 14. a. Calvin’s case.);
Dr. Bonham’s Case, 8 Coke’s Reports 107, at 118 (1610) aff’d. Robin v. Hardaway, 1 Jefferson 109, 114, 1 Va. Reports Ann. 58, 61 (1772) ([I]n many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such to be void.); http://www.supremecourthistory.org/04_library/subs_journal/04_a04.html
All men are freemen or slaves {Omnes homines aut liberi sunt aut servi}; The thing speaks for itself {Res ipsa loquitur};
“It’s law that, if interpreted broadly, gives judges the court-order version of a blank check.”
BINGO!!!
Expect nothing but the broadest of all possible ‘interpretations’.
Justice Stewart’s dissent in United States v. New York Telephone Co., 434 U.S. 159, 190 (1977), pithily focuses on just what the issue is: “If the All Writs Act confers authority to order persons to aid the Government in the performance of its duties, and is no longer to be confined to orders which must be entered to enable the court to carry out its functions, it provides a sweeping grant of authority entirely without precedent in our Nation’s history. Of course, there is precedent for such authority in the common law—the writ of assistance. The use of that writ by the judges appointed by King George III was one British practice that the Revolution was specifically intended to terminate.”
The British aren’t coming; they’ve already returned.
Man… you guys.. are getting way to technical.
Here’s the law….
Don’t fk with me ..and I won’t fk with you.
Don’t steal my sht and I won’t steal your sht.
Don’t fk my wife and I won’t fk your wife.
That’s just for starters for being a good neighbor.
Laws are for stupid people that just can’t figure out how to get along without fkng their neighbor over.