Apple Is Right on Encryption The FBI doesn’t want merely one phone, and its warrant is legally suspect.
http://www.wsj.com/articles/apple-is-right-on-encryption-1456877827
The Apple encryption conflict has turned nasty, as the Obama Administration, most Republicans and public opinion turn against the tech company. But, lo, Apple won its first court test on Monday, and its legal briefs against the court order to unlock an iPhone used by the San Bernardino jihadists show it has a better argument than the government.
The FBI is attempting to extract information on Syed Rizwan Farook’s device but has been frustrated by Apple’s encryption. So a California magistrate ordered the company to design a custom version of its operating software that will disable certain security features and permit the FBI to break the password. Apple has cooperated with the probe but argues that forcing it to write new code is illegal.
One confusion promoted by the FBI is that its order is merely a run-of-the-mill search warrant. This is false. The FBI is invoking the 1789 All Writs Act, an otherwise unremarkable law that grants judges the authority to enforce their orders as “necessary or appropriate.” The problem is that the All Writs Act is not a catch-all license for anything judges want to do. They can only exercise powers that Congress has granted them.
Congress knows how to require private companies to serve public needs. The law obligates telecoms, for example, to assist with surveillance collection. But Congress has never said the courts can commandeer companies to provide digital forensics or devise programs it would be theoretically useful for the FBI to have—even if they are “necessary” for a search.
Congress could instruct tech makers from now on to build “back doors” into their devices for law-enforcement use, for better or more likely worse. But this back-door debate has raged for two years. In the absence of congressional action, the courts can’t now appoint themselves as a super legislature to commandeer innocent third parties ex post facto. CONTINUE AT SITE
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