How Apple Plans to Beat the FBI: New at Reason

In an order compelling Apple to craft a technical tool that would allow the FBI to bypass security measures on the iPhone, 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.” 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. 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.”

In its 65-page motion to vacate the order, Apple handily addresses the feds’ questionable use of the All Writs Act.  Apple’s first major legal argument is that the government’s use of the All Writs Act far exceeds the limits of the law, Andrea Castillo explains. The company argues that the order indeed places an undue burden on Apple, and would adversely affect Apple’s basic interests. Furthermore, say Apple’s attorneys, the court order actually violates Apple’s First Amendment rights.

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