Taking a Bite Out of Apple

In September 2013, Apple CEO Tim Cook joined first lady Michelle Obama during President Obama’s State of the Union address. Ironic how fast the tables turned from favor to opposition.

That’s because the Department of Justice and its law enforcement arm, the FBI are trying to force Apple to create a custom software application that will help the agency break into a seized phone. Apple doesn’t want to do that, because it would be creating a security flaw in its own privacy protections, which could then be exploited, both lawfully and unlawfully.

And the DOJ/FBI are using a 227-year-old statute known as the ‘All Writ’s Act of 1789.’ So what is this All Writs Act?

  • (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.)

(A ‘nisi’ or ‘rule nisi’ is a court order that does not have any force unless a particular condition’s met. Once met the ruling becomes absolute and is binding.)

It was part of the Judiciary Act of 1789, which created the federal court system and George Washington signed it into law. In essence it gives the court power to issue orders that do not fall under a pre-existing law.

It serves as a procedural tool for courts dealing with odd and miscellaneous issues that haven’t been covered by other laws yet. And if interpreted broadly, it could undermine the Fourth Amendment of the U.S. Constitution, which reads in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

If U.S. Magistrate Judge Sheri Pym decides in favor of the government, she’ll set a precedent making it easier for any agencies to force a company (or individual) to comply no matter the reason or outcome.  As stated by Thomas Jefferson, “Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”

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