THE ALL WRITS ACT IN THE DIGITAL AGE: 1789 MEETS THE IPHONE

Author: Morgan Burkart, Digital Media Editor

I. Introduction

In 1789, Congress enacted the All Writs Act (AWA), codified at 28 U.S.C. § 1651, granting federal courts the authority to issue "all writs necessary or appropriate in aid of their respective jurisdictions."[i] The statute was designed as a tool for courts to issue orders not otherwise provided for by existing law. Today, the AWA has become a contested instrument of the federal government, used for compelling technology companies to assist in criminal investigations.[ii] A gap-filling statute from the founding era has become the government's go-to tool for cracking open encrypted smartphones.

Understanding this trajectory requires first understanding what the AWA authorizes, and what it does not. The Supreme Court addressed the statute's scope in United States v. New York Telephone Co., articulating a three factors for determining when third-party assistance may be compelled: (1) the party must not be too far removed from the underlying controversy; (2) the assistance sought must not be unduly burdensome; and (3) the court must have jurisdiction over the matter.[iii] In that case, the Court permitted the government to compel the telephone company to install pen registers because the company was closely connected to the investigation and the burden was minimal.[iv] This three-part framework has become the backbone of the government's most ambitious AWA arguments in the digital age.

II. The AWA's Expansion into Digital Technology

Before the infamous Apple litigation of 2016, involving the iPhone of one of the San Bernardino shooters, courts were already applying the AWA to technology companies in limited contexts.[v] Courts compelled service providers to facilitate pen register-style data collection, and magistrate judges occasionally issued AWA orders requiring device manufacturers or carriers to provide technical assistance with lawful investigations.[vi] These early cases established a significant precedent: the AWA could reach private technology actors, provided the New York Telephone factors were satisfied.

The government's increasing reliance on the AWA tracked the growing importance of personal digital devices. As the Supreme Court recognized in Riley v. California, cell phones are not mere containers but repositories of the "privacies of life," holding "the sum of an individual's private life.”[vii] Because of the wealth of private information at issue, law enforcement's interest in accessing such devices intensified as manufacturers began using encryption as their default security measure.

In In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, the government's position was straightforward: if a federal judge issues a warrant, and a technology company possesses the technical means to execute it, the AWA obligates that company to render assistance.[viii] Critics argued that this reading transformed a gap-filling statute into authorization for compelled labor, transforming third-party technology companies into “de facto government agents.”[ix]

III. Apple vs. FBI: The Limits of the All Writs Act

The AWA's limits were tested in 2016, when a federal magistrate judge in the Central District of California ordered Apple, Inc. to assist the FBI in accessing the iPhone 5C of one of the perpetrators of the 2015 San Bernardino attack.[x] The government invoked the AWA for authority, arguing that Apple was uniquely positioned—and legally obligated—to create software that would disable the iPhone's security features.[xi]

Apple refused and filed a motion to vacate the order, raising several arguments to support their position.[xii] First, Apple argued that requiring it to write new software exceeded the AWA's authority by forcing them to create new tools.[xiii] Second, Apple raised a First Amendment argument: because computer code is a form of protected speech, compelling Apple to write a new operating system amounted to compelled expression subject to exacting scrutiny.[xiv] Third, Apple argued that the order imposed an undue burden under New York Telephone, because creating backdoor software would require significant engineering resources and would permanently undermine the security of its products for users worldwide.[xv]

As a foundation for all three arguments, Apple asserted a statutory objection: the AWA cannot be used to grant authority that Congress has considered and declined to confer.[xvi] Apple argued that Congress, through the Communications Assistance for Law Enforcement Act (CALEA), had considered the question of whether technology companies could be compelled to assist the government with device decryption and had decided against it.[xvii] Because the Executive Branch abandoned legislative efforts to expand CALEA and Congress had left CALEA untouched, Apple argued the government was attempting to misuse the AWA to circumvent the democratic process.[xviii] This argument is further supported under the five-factor framework later introduced by the Eleventh Circuit in United States v. Blake in 2017, which requires that an AWA order not be inconsistent with congressional intent.[xix]

Privacy advocates and cybersecurity experts further warned that any software tool created to bypass encryption could not be reliably contained.[xx] Once created, the tool could be stolen, replicated, or compelled for use in future cases, transforming a judicial order into a permanent weakness in the global market.[xxi] The government countered with the "going dark" argument: that the implementation of strong encryption was impeding lawful investigations, allowing criminals and terrorists to communicate with impunity.[xxii]

The case never reached a ruling on the merits. The government withdrew its application after representing to the court that a third party provided an alternative means of accessing the device.[xxiii] The identity of that third party and the method used were never publicly disclosed, leaving the central legal questions unresolved by the court.

IV. Policy Debates and International Implications

The San Bernardino case highlighted a debate that had been building for years. The Department of Justice's "going dark" concerns reflected a genuine challenge: as end-to-end encryption becomes the standard, the ability to execute lawfully issued warrants diminishes.[xxiv] From the government's perspective, encryption without any access method represents a near-dead end for justice.[xxv]

Cybersecurity experts rejected the backdoor solution on technical grounds. Encryption is a binary proposition: either a system is secure, or it is not. A backdoor accessible to the U.S. government is indistinguishable from a backdoor accessible to foreign intelligence services or criminal hackers.[xxvi] A U.S. precedent compelling an international corporation like Apple to write decryption software could embolden authoritarian governments to demand similar access to their own citizens' devices.[xxvii]

V. Call for Legislative Reform

In the decade since the San Bernardino case, the government has continued to invoke the AWA in encryption-related disputes. Courts have reached inconsistent conclusions, applying the New York Telephone factors with varying results depending on the degree of burden imposed and the proximity of the compelled party to the investigation. No circuit court of appeals has issued a definitive ruling on the AWA's application to compelled decryption or software creation, leaving the law in a state of unresolved tension.

Congress has not resolved these questions either. Proposals for a federal statute governing encryption access—referred to as a "CALEA II" framework—have failed over the same disagreements that arose in the San Bernardino case: the technical impossibility of a "secure backdoor," the international implications of mandated access, and the appropriate allocation of authority between courts and the legislature.[xxviii]

Congress has considered protective measures as well. The ENCRYPT Act, introduced in multiple sessions of Congress, would have prohibited states from mandating encryption backdoors—representing a legislative recognition that preempting compelled access, rather than authorizing it, may be the more workable path forward.[xxix]

The result is a legal twilight zone in which courts continue to apply an eighteenth-century gap-filler to twenty-first-century technology, producing inconsistent outcomes and leaving technology companies, law enforcement, and the public without clear guidelines.[xxx]

VI. Conclusion

The government’s attempts to contort the All Writs Act into a statute applicable to advanced, technological challenges encountered in the pursuit of justice highlights a persistent issue in American law: statutory frameworks designed for one technological era rarely work with the next. The New York Telephone framework was adequate for compelling a telephone company to install a simple pen register.[xxxi] It is inadequate for determining whether a technology company can be compelled to create new software capable of defeating its own security measures.

The Apple-FBI dispute made it clear that this issue has implications beyond a single investigation. They concern digital privacy and security worldwide. Courts alone should not resolve these questions through individual and inconsistent rulings. Congress must establish a lasting legal framework—one that accounts for both the government's legitimate investigative interests and the security risks posed by compelled decryption. Until it does, the All Writs Act will remain an imperfect key in a lock it was never designed to open.

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[i] 28 U.S.C. § 1651(a) (2018).

[ii]See United States v. Blake, 868 F.3d 960 (11th Cir. 2017); See In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, No. ED CM 16-10, 4-5 (C.D. Cal. Feb. 25, 2016).

[iii] United States v. New York Tel. Co., 434 U.S. 159, 174–75 (1977).

[iv] Id. at 174.

[v]See United States v. New York Tel. Co., 434 U.S. 159 (1977); See also United States v. Illinois Bell Tel. Co., 531 F.2d 809 (1976); See also Michigan Bell Tel. Co. v. United States, 565 F.2d 385 (1977).

[vi]See United States v. New York Tel. Co., 434 U.S. 159 (1977).

[vii] Riley v. California, 573 U.S. 373, 395–96 (2014).

[viii] Government's Ex Parte Application For Order Compelling Apple, Inc. To Assist Agents in Search, In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, No. ED CM 16-10, 4-5 (C.D. Cal. Feb. 25, 2016).

[ix] Apple Inc.'s Motion to Vacate Order Compelling Apple Inc. to Assist Agents in Search, In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, No. ED CM 16-10, 14-15(C.D. Cal. Feb. 25, 2016) [hereinafter Apple Motion to Vacate]; See also In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, 149 F. Supp. 3d 341 (E.D.N.Y. 2016).

[x] In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, No. ED 16-10, 2016 WL 618401 (C.D. Cal. Feb. 16, 2016).

[xi] Id. at 1.

[xii] Apple Motion to Vacate, supra note 8.

[xiii] Id. at 23-29.

[xiv] Id. at 32–33.

[xv] Id. at 23-29; see also New York Tel. Co., 434 U.S. at 174–75.

[xvi] Apple Motion to Vacate, supra note 8, at 15.

[xvii] Id. at 15–19; see 47 U.S.C. § 1002(b)(1)-(2).

[xviii] Apple Motion to Vacate, supra note 8, at 9–10.

[xix] United States v. Blake, 868 F.3d 960, 970–71 (11th Cir. 2017).

[xx] Apple Motion to Vacate, supra note 8, at 24-25.

[xxi]Id.

[xxii] James B. Comey, “Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course,” speech at Brookings Institution, October 16, 2014. https://archives.fbi.gov/archives/news/speeches/going-dark-are-technology-privacy-and-public-safety-on-a-collision-course.

[xxiii] In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, No. ED 16-10, 2016 WL 1705765 (C.D. Cal. Apr. 27, 2016) (vacating prior order upon government's motion).

[xxiv] Comey, supra note xxii.  

[xxv]See id.

[xxvi] Bruce Schneier, Security or Surveillance?, in Berkman Klein Ctr. for Internet & Soc'y, Don't Panic: Making Progress on the Going Dark Debate app. A, at 2 (2016).

[xxvii] Id.

[xxviii] Apple Motion to Vacate, supra note xiii, at 8–10.

[xxix] ENCRYPT Act of 2018, H.R. 1053, 115th Cong. (2018); ENCRYPT Act of 2019, H.R. 2012, 116th Cong. (2019).

[xxx] Compare In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, No. ED 16-10, 2016 WL 618401 (C.D. Cal. Feb. 16, 2016) (holding that the AWA does not authorize compelled software creation), with In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, 149 F. Supp. 3d 341 (E.D.N.Y. 2016) (reaching the opposite conclusion on similar facts).

[xxxi] United States v. New York Tel. Co., 434 U.S. 159 (1977).