The Legal Battle for Cell Phone Privacy Wages On

In order to aid Federal law enforcement officers with an investigation into the 2015 San Bernardino terrorist attack, a judge has ordered Apple Inc. to develop new technology to defeat security measures present in iPhone operating systems. Apple, however, has challenged the government's order on legal grounds, and its CEO Tim Cook has specifically faulted the government for proposing an unprecedented use of a very old statute to justify an expansion of its authority, as opposed to asking for legislative action through Congress.

The All Writs Act of 1789 is a statute which authorizes federal courts to issue written orders, when appropriate, to compel third parties to help execute a court order such as a search warrant. In the case U.S. v. New York Telephone Co., the Supreme Court established a three-factor test for the permissible application of the Act: the party ordered to perform an action cannot be too far removed from the case, the government's request cannot impose an undue burden on that party, and the party's assistance must be necessary. Apple argues that the government's demand creates an unreasonable burden because of the nature of the assistance requested.

The FBI has asked that Apple develop technology to disable a feature which erases encrypted data after 10 incorrect password attempts. Apple claims that, were they to comply with this demand for automated password entry with no consequence for failed attempts, simple "brute force password attacks" would then be easy for anyone with access to this software. Apple and others are wary of the ensuing universal iPhone vulnerability this would create. Privacy advocates further suggest that if the FBI can force Apple to build a "key" of this kind, other countries could turn around and force Apple to hand the key over to them. The concern is that authoritarian regimes will use this technology to oppress their people and steal U.S. trade secrets.

Apple argues that forcing it to write new software violates its First Amendment rights. Certain courts have, in fact, determined that writing computer code is a form of free speech. Apple also argues that the federal government is overstepping its rights under the Communications Assistance for Law Enforcement Act of 1992 ("CALEA"). The federal government, on the other hand, argues that Apple's First Amendment rights are not being violated, and that CALEA is entirely inapplicable to the dispute.

The great challenge this dispute presents to the legal system lies largely in the fact that the First Amendment, The All Writs Act and CALEA were all enacted well before the advent of the Smart Phone.

If you have questions about cell phone privacy issues or other legal matters, please contact Attorney Sally McDonald at 401.824.5148 or smcdonald@pldolaw.com. We welcome your comments, questions and suggestions.

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