Apple, Inc., moved to vacate an order issued by a United States Magistrate Judge pursuant to the All Writs Act that directed Apple to provide the FBI with reasonable technical assistance to enable the search an iPhone seized during the investigation of the December 2, 2015 mass shootings in San Bernardino, California. Apple’s objections to the order included an argument that the FBI should have sought the authority to compel such assistance through legislation rather through the courts.
Senators Richard Burr and Diane Feinstein, the Chair and Vice Chair, respectively, of the Senate Select Committee on Intelligence, are reported to be considering introducing such legislation. An ostensible “discussion draft” of that proposed legislation has circulated on the Internet. According to that discussion draft, the proposed legislation would be entitled the “Compliance with Court Orders Act of 2016” and require companies that make products like the iPhone that contain features allowing users to encrypt data communicated over or stored on the product, to comply with court orders directing the company to provide the government with a decrypted version of the encrypted data stored on that product provided the data had been encrypted using the feature provided by the company, or to provide the government with appropriate technical assistance necessary to decrypt the data.
While there are valid questions whether such legislation is necessary or desirable as a matter of law, the more important question here is not what the law is, but what the law ought to be. The interests raised in the Apple v. FBI dispute are significant: effective national security and law enforcement, protection for privacy rights and civil liberties, and the domestic and international health of U.S. businesses. Those interests require serious discussion and debate. To address the question of what the law ought to be in a manner that foster serious consideration of the important interests at stake, Senators Burr and Feinstein should introduce the draft Compliance with Court Orders Act. The senators must then actively push that legislation through the legislative process in order to gather and test information, sift fact from opinion, and discern truth from hyperbole to generate an informed and thorough public, political, and policy debate that gives fair consideration to the security, liberty, and business interests at stake.
Much of the public discourse over the Magistrate Judge’s order to Apple has focused on predictions of the consequences of enforcing or vacating the order. It has been a debate heavy with “parades of horribles,” such as “[t]he government could . . . demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge,” wrote Tim Cook in a Message to Our Customers on February 16th. Such hyperbole targets emotion rather than reason, ignores fundamental restraints on government action such as the Fourth Amendment, and implies that health records and financial data are not subject to government access today. While this approach is certainly not unique to this case and is well-suited for influencing public opinion, it is ill-suited for informing the American people or for assisting the legislative branch in considering legislation that will effect the will of the people.
The discussion should instead be designed to identify the differing value judgments and policy views the American citizenry hold on these interests. Senators Burr and Feinstein can initiate a discussion of that sort through public hearings intended to elicit the full spectrum of views from experts and advocates, and to test the reasonableness of the predicted consequences to security, liberty, and profit interests. Thus, whether or not new legislation is legally required or desirable, the legislative process may offer the most effective vehicle for a thorough and informed national discussion whether and, if so, under what circumstances, the government may obtain a court order to compel a company or person to assist the government obtain access to information that had been rendered unintelligible through a product made or sold by that company or person.