The FBI-Apple Case is Only the Latest Battle Pitting Privacy Against the Need to Investigate Crime. Originally Published in SC Lawyer

1. From Breaking Down Doors
to Building Back Doors
The FBI-Apple Case is Only the Latest Battle Pitting
Privacy Against the Need to Investigate Crime
By Jack Pringle
34 SC Lawyer

2. “Still, as in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not
faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities
are convenient and at hand.” Babington v.Yellow Taxi Corporation, 250 N.Y. 14 (1928).
“Modern cell phones are not just another technological convenience. With all they contain and all they
may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an
individual to carry such information in his hand does not make the information any less worthy of the
protection for which the Founders fought.” Riley v. California, 573 U.S. _____ (2014).
Introduction
The FBI seized an Apple
iPhone 5c held by San Bernardino
County that was used by one of
the suspects in the San Bernadino
bombing. The seizure of the iPhone
itself was not at issue, having been
accomplished pursuant to a validly
issued warrant.
That iPhone (and all Apple
devices running IOS 8 and beyond)
offers users the ability to “lock”
the device (and encrypt all the
information on it) with a passcode
(a “key” of sorts). In addition, the
iPhone has two additional security
features designed to make it diffi-
cult to unlock the device: 1) after
too many incorrect passcode guess-
es all of the data on the iPhone will
be erased, or “wiped”; and 2) estab-
lishing a mandatory delay between
passcode guesses.
Because the FBI didn’t know the
passcode and could not obtain it,1
it
turned to the All Writs Act (AWA),2
a law that allows a federal court
to require the aid of third parties
in appropriate circumstances, to
attempt to execute the warrant. In
particular, the FBI sought to require
Apple to write software that would
enable the FBI to bypass the secu-
rity features and “brute force” the
passcode to the iPhone by guessing
potential passcodes rapidly and
in an automated way. In practical
terms, the FBI wanted Apple to cre-
ate a software workaround (a/k/a
“backdoor” or “master key”) to allow
the FBI to defeat the iPhone’s en-
cryption and access information on
ILLUSTRATION
BY
STEVEN
WHETSTONE
January 2017 35

3. and available from the device.
The dispute presented what ap-
peared to be an odd pairing: an old
statute (the AWA) and a new tech-
nology (presumably “unbreakable”
encryption). Moreover, both sides
cited a case—United States v. New
York Telephone3
—decided in 1977
(eons ago in the world of technolo-
gy) in support of their positions.
So how is the AWA (and not a later
statute enacted by Congress) in
play in a case involving a technol-
ogy tool that could not have been
imagined by the Founders? And
why has the AWA not been impli-
cated in a technology context for
almost 40 years?
It turns out that the applica-
tion of the AWA relies heavily on
what Congress and the courts have
done (and not done) over the years
in establishing limits (framed by
the Fourth Amendment right to be
secure in one’s home and person)
on law enforcement power to
search and seize. And new technol-
ogies (like the telephone, telegraph
and various computer tools) have
consistently presented policymak-
ers with the very difficult task of
weighing law enforcement needs
against privacy interests.
Apple’s device encryption (a rel-
atively new technology tool) raised
a difficult question: how to strike a
balance between privacy and law
enforcement’s need to investigate
crimes. But it is a difficult question
that has been asked many times.
Similarly, the technology at
issue is not entirely new to the
privacy/law enforcement debate. It
is true that “unbreakable encryp-
tion” (think of a lock that can’t be
picked) is a new wrinkle in the ap-
plication of the AWA. But the topic
of encryption has been considered
and addressed by Congress on
more than one occasion.
This article will briefly touch
on some of the most significant
points at which Congress and the
courts have struggled to fit new
and evolving technology tools into
the balance. The history of the
debate shows that new technology
tools almost always create hard
cases, because these tools increase
both law enforcement capability to
get information, and the power to
protect information.
The issues raised in the FBI-Ap-
ple dispute went unanswered,
because the FBI withdrew its AWA
request, but these and other ques-
tions will persist as technology
continues to evolve and law en-
forcement needs also change.
The Fourth Amendment and the
AWA: Search Warrants and Exe-
cuting on Them
The Fourth Amendment and
the AWA were a reaction to the
British use of writs of assistance
(also called “writs of aid”), through
which the sovereign ‘would autho-
rize wide-ranging searches of any-
one, anywhere, and anytime with-
out being suspected of a crime.’4
As
Justice Roberts remarked in Riley,
writs of assistance helped spark
the Revolutionary War:
Our cases have recognized
that the Fourth Amendment
was the founding generation’s
response to the reviled “gen-
eral warrants” and “writs of
assistance” of the colonial era,
which allowed British officers
to rummage through homes
in an unrestrained search for
evidence of criminal activity.
Opposition to such searches
was in fact one of the driving
forces behind the Revolution
itself. In 1761, the patriot James
Otis delivered a speech in Bos-
ton denouncing the use of writs
of assistance. A young John
Adams was there, and he would
later write that “[e]very man of
a crowded audience appeared
to me to go away, as I did, ready
to take arms against writs of
assistance” (citations omitted).
According to Adams, Otis’s
speech was “the first scene of
the first act of opposition to the
arbitrary claims of Great Brit-
ain. Then and there the child
Independence was born” (cita-
tions omitted).
The “unrestrained” searches of
“anyone, anywhere, and anytime
without being suspected of a crime”
allowed by the British writs of as-
sistance would not continue in the
new United States.
Accordingly, the language of the
Fourth Amendment set a constitu-
tional limit on searches, seizures
and surveillance:
The right of the people to be
secure in their persons, houses,
papers, and effects, against un-
reasonable searches and sei-
zures, shall not be violated, and
no Warrants shall issue, but
upon probable cause, supported
by Oath or affirmation, and par-
ticularly describing the place to
be searched, and the persons or
things to be seized.
The Fourth Amendment frame-
work, as shaped by Congress and
federal courts, continues to be
applied to require that searches be
reasonable.
Likewise, the AWA provides
for a much more circumscribed
writ power, one that is triggered
only when the predicate Fourth
Amendment warrant standard has
been met:
[A federal court] may issue all
writs necessary or appropriate
in aid of their respective juris-
dictions and agreeable to the
usages and principles of law.
The AWA does not provide any
stand-alone jurisdiction, but au-
thorizes only those writs “in aid of”
existing jurisdiction.5
“The All Writs
Act is a residual source of authority
to issue writs that are not other-
wise covered by statute. Where a
statute specifically addresses the
particular issue at hand, it is that
authority, and not the All Writs Act,
that is controlling.”6
For example,
the AWA cannot supply a federal
court with authority to exercise
removal jurisdiction, because 28
U.S.C. § 1441 requires that the dis-
trict court have original jurisdiction
over the civil action in question.7
One way to think of the AWA is
that it “fills in gaps” where Congress
has not spoken. In other words, the
AWA “fill[s] the interstices of feder-
al judicial power when those gaps
threate[n] to thwart the otherwise
36 SC Lawyer

4. proper exercise of federal courts’
jurisdiction.”7
Understanding the legal battle-
ground for the FBI-Apple dispute
requires a little history of where
the current and alleged “gaps” in
federal search, seizure and survel-
liance jurisdiction exist that the
AWA could fill.
Defining the Parameters of
“Search” and “Seizure”
“Technology is neither good nor
bad; nor is it neutral.”—Dr. Melvin
Kranzberg’s First Law of Technology8
Early Development of Search Tools:
New Technology and New Surveillance
There was little technological
advance (and therefore scant juris-
prudence) applicable to surveil-
lance during the early years of the
Republic. However, the invention of
the telegraph in 1844 was followed
soon thereafter by technology that
could tap into (intercept) telegraph
communications. In response, more
than half the states passed laws to
prevent the disclosure of telephone
messages by telegraph employ-
ees.9
During the Civil War, Union
and Confederate generals used
telegraph machines to send false
orders to the enemy.10
Likewise, telephone wiretap-
ping technology developed follow-
ing the invention of the telephone
in 1876. A number of state legis-
latures passed laws criminalizing
wiretapping.11
But communications technol-
ogy was not the only part of this
equation that was changing. As
described by Solove, the evolution
of crime and law enforcement re-
sulted in more surveillance:
The government began to
increase prosecution of certain
consensual crimes, such as
gambling, the use of alcohol
during Prohibition, and the traf-
ficking of drugs. Unlike robber-
ies or assaults, which are often
reported to police, these crimes
occurred through transactions
in an underground market.
Infiltration into this underworld
(undercover work), as well as
surveillance, became key tools
to protect these crimes.12
As a result, those cases considering
the limits of reasonable surveil-
lance often involved (alleged) boot-
leggers, bookies and other putative
purveyors of various vices. And by
1928 a challenge to government
surveillance of telephones would
reach the U.S. Supreme Court.
Olmstead (1928): The Fourth Amend-
ment Protects “Material Things” (and
Not Phone Conversations)
Olmstead challenged the admis-
sion of conversations obtained by a
warrantless wiretap. Mr. Olmstead
was the head of a very large-scale
bootlegging operation in the Pacif-
ic Northwest during Prohibition.
Information that led to Mr. Olm-
stead’s conviction (and those of
other defendants) was obtained as
a result of “intercepting messages”
(listening to phone conversations)
by inserting small wires “along the
ordinary telephone wires.” These
“insertions” did not trespass on
the property of any of the defen-
dants because they were attached
to wires owned by the telephone
company.
Olmstead appealed his convic-
tion, arguing that the “taps” of his
phone lines required a warrant and
a showing of probable cause pursu-
ant to the Fourth Amendment. (In-
terestingly, Washington had passed
a state law criminalizing wiretaps.)
Chief Justice Taft wrote the
opinion of the U.S. Supreme Court
and concluded that “the wiretap-
ping here disclosed did not amount
to a search or seizure within the
meaning of the Fourth Amend-
ment.” The majority opinion cited a
number of cases showing that the
purpose of the Fourth Amendment
“was to prevent the use of govern-
mental force to search a man’s
house, his person, his papers, and
his effects, and to prevent their
seizure against his will …”13
Signifi-
cantly, the opinion referred to the
objects of search covered by the
Fourth Amendment as “material
things.”14
The intercepted messag-
es, by contrast, were not “material
things” belonging to Olmstead.
Justice Brandeis wrote a strong
dissent, issuing a prescient warning
about the powers of new technolo-
gy tools:
Subtler and more far-reaching
means of invading privacy have
become available to the govern-
ment. Discovery and invention
by the government have made it
possible for the government, by
means far more effective than
stretching on the rack, to obtain
disclosure in court of what is
whispered in the closet.15
In addition, Justice Brandeis refused
the analogies to “material things”
employed by the majority, and in-
stead compared a private telephone
conversation to a sealed letter.16
Following Olmstead, federal and
state governments employed rela-
tively widespread use of wiretap-
ping in many contexts. In response,
in 1967, the Supreme Court set
out criteria for electronic surveil-
lance,17
and in that same year had
the opportunity to revisit the Olm-
stead rationale.
Katz (1967): The Fourth Amendment
Protects People (Not Just Material
Things)
By 1967, tolerance for wide-
spread tapping and surveillance
had worn thin with the Supreme
Court. United States v. Katz18
re-
versed Olmstead and ruled that
listening to a conversation taking
place in a phone booth (Mr. Katz
was a bookie and did business in
Methods Used to Get Informa-
tion from Telephones
Pen Register—A device that records
the numbers called by a phone,
but that does not record any phone
conversations or determine whether
calls were completed.
Trap and Trace—A device that
records incoming calls to a phone,
but that does not record any phone
conversations.
Wiretap—A device that records a
phone conversation.
January 2017 37

5. that phone booth) constituted a
“search and seizure” protected by
the Fourth Amendment. Katz made
clear that the Fourth Amendment
was not concerned solely with “ma-
terial things,” “tangible items” or
“physical penetration” of protected
space. Instead, the Katz court made
clear that the Fourth Amendment
protects people—and not simply
‘areas’—against unreasonable
searches and seizures …”19
Likewise, the Court made clear
that had the government sought a
warrant under these circumstanc-
es, Rule 41(b) of the Federal Rules
of Criminal Procedure would have
authorized a limited search and
seizure of those records sought,
even if the language of that rule
appeared to concern itself only
with “tangible evidence.”20
So over the course of 39 years,
the reach of the Fourth Amend-
ment expanded from “material
things”21
as articulated by Chief
Justice Taft, to the broader notions
of privacy envisioned by Justice
Brandeis. Notably the passage of
time between Olmstead and Katz is
exactly that between the Supreme
Court’s application of the AWA in
New York Telephone and the FBI-Ap-
ple dispute.
Congress Responds to Katz By Enact-
ing Title III Surveillance Requirements
(1968)
In 1968 Congress passed Title III
of the Omnibus Crime Control and
Safe Streets Act, (Title III).22
Title
III prohibits wiretapping and other
electronic surveillance except when
conducted by law enforcement
investigating certain crimes. More-
over, Title III requires law enforce-
ment surveillance, including wire-
taps,23
to follow specific procedures
subject to judicial supervision.
Significantly, Title III amended
18 U.S.C. Section 2518(4) to require
a “communications common carri-
er” (the phone company) to provide
law enforcement with “all infor-
mation, facilities, and technical
assistance necessary to accomplish
the interception unobtrusively …”
So, for the first time, third parties
could be required to assist in the
placement of a wiretap, presuming
a proper wiretap order had been
obtained.
The question left unanswered,
even after the enactment of Title
III, was what kind of responsibility
a telephone company might have
to assist law enforcement with
installing a pen register.
New York Telephone (1977): Filling
Gaps or Overstepping?
The FBI wanted to install pen
registers24
on two phone lines it
suspected were being used in con-
nection with illegal gambling activ-
ities. The FBI obtained an order (af-
ter making a showing of probable
cause) authorizing the installation
of the pen registers (“Pen Register
Order”), but not a Title III wiretap
order. However, the FBI couldn’t in-
stall the pen registers by itself (on
or near the house where the activi-
ty was allegedly taking place) with-
out arousing suspicion. In order to
install the pen registers at a safe
distance, the FBI needed to lease
two additional telephone lines from
the telephone company (New York
Telephone). The FBI couldn’t execute
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6. the Pen Register Order without New
York Telephone’s assistance.
The FBI sought and obtained a
court order pursuant to the AWA
requiring New York Telephone to
provide the FBI with “all informa-
tion, facilities and technical assis-
tance” necessary to install the pen
registers “unobtrusively.”25
New
York Telephone refused, and sug-
gested the FBI string its own wires
to another location.
New York Telephone sought to
vacate the “assistance” part of the
Pen Register Order on the basis that
it could only be issued in connec-
tion with a Title III wiretap order.
Accordingly, Federal Rule of Crimi-
nal Procedure 41(b) 26
could not jus-
tify the Pen Register Order, and the
AWA could not help execute that
order. From New York Telephone’s
perspective, then, Congress left no
“gap” that the AWA could fill.
The U.S. Supreme Court ruled
(reversing the Second Circuit which
had in turn reversed the district
court), that New York Telephone’s
assistance was required to exe-
cute a validly issued Pen Register
Order.27
The Court applied a three-
part test to conclude that the AWA
justified the cooperation of New
York Telephone:
1) New York Telephone was not
too removed from the controversy.
The district court had determined
that there was probable cause that
New York Telephone’s telephone
lines were being used to conduct
illegal bookmaking. Additionally,
New York Telephone had already
provided some of the assistance
sought by the FBI. As a result, it
was sufficiently enmeshed in the
controversy.
2) The burden on New York Tele-
phone in providing “assistance” was not
unreasonable. New York Telephone
was no stranger to pen registers,
and used them for its own purpos-
es. Its status as a “highly regulated
public utility” supported its duty
to assist. Likewise, there was no
dispute that New York Telephone
could provide the requested assis-
tance, and the Pen Register Order
required it to be paid for doing so.
3) The surveillance authorized
by the Pen Register Order could not
have taken place without the assis-
tance of New York Telephone. The FBI
demonstrated that it could not find
a location to install pen registers
“without tipping off the targets of
the investigation.”
Back to the FBI-Apple Dispute:
Has Congress left a “gap” that the
AWA (and Apple) must fill?
On the predicate issue of
whether the AWA could be applied
at all, Apple argued that the actions
of Congress prevented the FBI from
seeking the assistance sought from
Apple. In enacting and amending a
federal law called the Communica-
tions Assistance for Law Enforce-
ment Act (CALEA),28
Congress re-
fused to give law enforcement the
authority to require telecommu-
nications carriers and equipment
manufacturers to build a “back
door” to defeat encryption that they
themselves did not know how to
decrypt.29
Moreover, Congress also
declined to act on efforts by the FBI
to expand the requirements appli-
cable to these companies.30
And as
described above, Congress certainly
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7. knew how to require third party
assistance in enacting Title III.
Would a court conclude that
Congress “spoke” to the issue of
encryption in enacting CALEA,
and further showed its intent by
“refusing to speak” when present-
ed with proposed legislation that
would have provided the govern-
ment with more powers? Or would
the court merely focus on the New
York Telephone test, which by and
large focuses on the burden to the
third party?31
Turning to the New York Tele-
phone test, Apple argued that its
status as an equipment manufac-
turer was much more removed
from the controversy than that of
a service provider like New York
Telephone. Moreover, it would be
absolutely unreasonable (and un-
duly burdensome) to require Apple
to build a back door to provide the
means to defeat the very encryp-
tion upon which its customers rely.
Moreover, Apple contended that a
requirement that it write software
code on the government’s behalf
would violate its First Amendment
right to free speech and its Fifth
Amendment right to due process.
Conclusion
There will be more legislative
and judicial examination of both
surveillance tools, and those tools
(like encryption) that may prevent
surveillance altogether. In partic-
ular, the idea that there is a device
that cannot be unlocked is unlikely
to sit well with law enforcement,
particularly when national security
is involved. However, consider that
at various times during our history,
an unbreakable lock has actually
existed, and no challenge to that
effective tool was ever brought un-
der the AWA or otherwise.32
On the other side of the coin,
as discussed in Riley and in Jones,
devices of many stripes will only
continue to store more of “the pri-
vacies of life.” And those devices are
increasingly owned and controlled
by third parties. “Cloud comput-
ing” is nothing more than someone
else’s computer servers, and the
“Internet of Things,” through which
more previously mundane objects
will be sensing, collecting and
communicating more information
to the cloud and elsewhere, is in its
very infancy.
As a result, courts will un-
doubtedly continue to apply old
(and new) statutes to both new
(and old) facts. And trying to bal-
ance law enforcement needs with
personal privacy and other liberties
will not get any easier.
Jack Pringle is a partner with Adams
and Reese in Columbia.
Endnotes
1
The suspect was deceased, the County did
not have the passcode, and neither did
Apple (or anyone else).
2
28 U.S.C. § 1651(a).
3
U.S. v. New York Tel. Co., 434 U.S. 159 (1977)
4
Derek Khanna, What the Founders Would
Say About the iPhone Unlock Case, March 23,
2016, available at www.fenwick.com/pub-
lications/pages/what-the-founders-would-
say-about-iphone-unlock-case.aspx
5
Syngenta Crop Prot., Inc. v. Henson, 537 U.S.
28, 31 (2002)
6
Pennsylvania Bureau of Correction v. United
States Marshals Service, 474 U. S. 34, 41 (1985)
7
Sygenta, 537 U.S. 28, 34
8
Id.
9
https://thefrailestthing.com/2011/08/25/
kranzbergs-six-laws-of-technology-a-meta-
phor-and-a-story
10
David J. Seipp, The Right to Privacy in Amer-
ican History 65 (1978), as cited in Daniel J.
Solove, Reconstructing Electronic Surveillance
Law, 72 Geo. Wash.L.Rev. 1701 (2004).
11
Fred Kaplan, Dark Territory: The Secret Histo-
ry of Cyber War, 2016 at p. 4.
12
Reconstructing Electronic Surveillance Law at
1710.
13
Reconstructing Electronic Surveillance at 1709.
14
Olmstead v. U.S., 277 U.S. 438, 463 (1928).
15
Id. at 464.
16
Id. at 473.
17
In Ex parte Jackson, 96 U.S. 727, the Court
concluded a sealed letter is protected by
the 4th
Amendment.
18
Berger v. New York, 388 U.S. 41 (1967).
19
389 U.S. 347 (1967).
20
389 U.S. 347, 353.
21
389 U.S. at 354-356.
22
To be clear, the “material things” approach
of Olmstead is very much still a part of U.S.
Supreme Court 4th
Amendment jurispru-
dence, as shown by Justice Scalia’s Opinion
of the Court in Jones concluding that the
installation of a GPS device was a 4th
Amendment “search”: “[t]he Government
physically occupied private property for
the purpose of obtaining information.” 132
S.Ct. 945, 949.
23
18 U.S.C. §§ 2510–2520 (1970 ed. and
Supp. V).
24
Title III (at that time) covered only the
“interception of wire communications,” (to
include the listening that took place in
Katz), and its requirements did not extend
to the placement of pen registers or trap
and trace devices.
25
Recall that pen registers record the num-
bers called by a phone, but cannot record
any phone conversations or determine
whether calls were completed.
26
U.S. v. New York Tel. Co., 434 U.S. 159, 161
(1977)
27
Addressing “Search and Seizure.”
28
The Court dispensed with New York
Telephone’s argument that Title III did not
authorize the Pen Register Order, conclud-
ing that “pen registers are not governed by
Title III.” 434 U.S. 159, 166.
29
47 U.S.C. § 1001 et seq.
30
See 47 U.S.C. §1002(b)(3) (carriers are not
responsible for “decrypting, or ensuring
the government’s ability to decrypt, any
communication encrypted by a subscriber
or customer unless the encryption was
provided by the carrier and the carrier
possesses the information necessary to
decrypt the communication.”).
31
Apple Inc.’s Motion to Vacate Order Compelling
Apple Inc. to Assist Agents in Search, and
Opposition to Government’s Motion to Compel
Assistance, at p. 8.
32
Robert Chesney and Steve Vladeck, “A
Coherent Middle Ground in the Apple-FBI All
Writs Act Dispute?,” Lawfare, March 21,
2016, available at www.lawfareblog.com/
coherent-middle-ground-apple-fbi-all-
writs-act-dispute
33
Derek Khanna, What the Founders Would
Say About the iPhone Unlock Case, March 23,
2016, available at www.fenwick.com/pub-
lications/pages/what-the-founders-would-
say-about-iphone-unlock-case.aspx.
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