Reality Check: Judge Says FBI Cannot Use 200 Year Old Law to Force Apple to Break Encryption

Reality Check: Judge says FBI Can't Use 200 Year-Old Law Again…

Reality Check: Judge says FBI cannot use 200 year-old law to justify forcing Apple to break encryption

Posted by Ben Swann on Tuesday, March 1, 2016

A federal judge has ruled in favor of Apple in its battle against the FBI over unlocking the phone of a drug dealer. Why is it important? Because the judge says the FBI cannot use a 200-year-old law in order to gain access to your phone — the same law they are trying to use to access the phone of the San Bernardino shooter.

This is a Reality Check you won’t see anywhere else.

There has been a major development in the battle between the FBI and the tech company. The U.S. Justice Department is demanding that Apple create software to give the FBI access to an iPhone belonging to one of the San Bernardino shooters.

Apple, as we have told you, is pushing back, saying the technology the FBI is asking for does not exist, and that forcing them to create a backdoor to one iPhone would mean a backdoor to every iPhone.

[RELATED: FBI Director Admits Apple’s ‘Backdoor’ Could Be Used for Other iPhones]

The real debate: can the federal government force a private company to act on their behalf, even in the case of national security? That is the center question in this debate. The government says it can, and its argument is actually based upon a 1787 law called the All Writs Act.

That law states that government has: “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

According to The New Yorker, in 1977 the Feds used the All Writs Act to force a New York telephone company to tap phones.

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“In that case, the F.B.I. wanted New York Telephone, which was already helping it to set up a tap in an illegal-gambling sting, to let it use some spare cables that were, physically, in the same terminal box as those hooked up to the suspect’s phone. The telephone company told the F.B.I. to get its own wires and string them into the apartment of one of the alleged gamblers some other way. When the F.B.I. objected that the suspects might spot the rigged cables, the Court agreed that it could legitimately ask the telephone company for its technical help and ‘facilities.'”

But remember, the FBI wasn’t asking New York Telephone to design a new kind of cable. In Apple’s case, the FBI says it was asking for help under the All Writs Act. But Federal Magistrate Judge James Orenstein in Brooklyn, who sits in the Eastern District of New York, says the All Writs Act does not permit a court to order companies to pull encrypted data off a customer’s phone or tablet.

The judge wasn’t ruling on the San Bernardino case. He was actually ruling on a case involving a Brooklyn drug dealer. But what is significant is that the FBI used the same claim of the All Writs Act.

In his 50-page opinion, the judge called the FBI’s claim “absurd.”

He said that none of the factors he reviewed in the case “justifies imposing on Apple the obligation to assist the government’s investigation against its will,” and to do so would undermine “the more general protection against tyranny that the Founders believed required the careful separation of governmental powers.”

The FBI says it will appeal the ruling in the drug dealer case. But what you need to know is that the ruling now creates precedent. The precedent is that the All Writs Act does not give the government the power to demand a firm to build software to undo a security feature that it had built in to protect a phone’s encrypted data.

That’s Reality Check. Let’s talk about that on Twitter @BenSwann_