The tech-policy community is still buzzing about a recent court order compelling Apple to craft a technical tool that would allow FBI investigators to bypass security measures on the iPhone used by San Bernardino shooter Syed Rizwan Farook.

The government’s legal argument rests largely on the archaic All Writs Act of 1789, a short law establishing that U.S. courts may "issue all writs [legal orders] necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Straightforward enough. As traditionally interpreted, this law merely allowed the judiciary a bit of flexibility to facilitate lawful legal procedures when the precise means needed were not already on the books. For example, a court might invoke this law to enlist a telephone company’s assistance in setting up a special kind of warranted wiretap that Congress had not specifically addressed in legislation. But there are supposed to be limits. For instance, the Act could not compel someone who is "far removed" from the situation to act, nor could it impose an "unreasonable burden" on a third party or "adversely affect" that party’s "basic interests."

But in recent years, the Justice Department has strained this 227-year-old provision beyond the reasonable bounds of interpretation in an effort to get around strong security technologies that it sees as hindering investigations. In 2014, reports from the The Wall Street Journal and Ars Technica revealed that courts in New York and California had invoked this obscure law to compel Apple and at least one other unknown device manufacturer to provide "technical assistance" to unlock password-protected phones. This most recent order to Apple has drawn these creative modern applications of a centuries-old law into strong public scrutiny.

Continue reading