decrypt-5A pair of recent cases pitted the U.S. Department of Justice (DOJ) against Apple, Inc. (Apple) in a Herculean struggle between asserted interests in national security and privacy. In both cases, the DOJ relied on the same statute – the All Writs Act of 1789 – which operates to fill the gaps of “federal judicial power when these gaps threaten[] to thwart the otherwise proper exercise of federal courts’ jurisdiction.” Michael v. I.N.S..

One case involved a request by the DOJ to decrypt the iPhone of Syed Farook, the gunman in the San Bernardino terrorist attack. A few weeks ago, a federal magistrate judge in the Central District of California ordered Apple to assist the FBI in bypassing the phone’s security functions so that investigators could analyze the phone’s contents. Apple vigorously fought the ruling, both in federal court and in the court of public opinion, warning of the breach of privacy posed by the government’s demands and that, essentially, no iPhone would be safe. Although the DOJ later withdrew its request after the FBI was able to unlock the iPhone using undisclosed “alternative” methods, the battle sparked a robust national debate.

Around the same time, a federal magistrate in the Eastern District of New York denied the DOJ’s request for Apple’s assistance in extracting data from the iPhone of a suspected drug trafficker.

The All Writs Act

The All Writs Act was enacted as part of the Judiciary Act of 1789, long before the invention of telephones, let alone smartphones. The Act, which operates to “fill in the gaps” of the federal courts’ powers not otherwise covered by statute, states “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Besides the requirements imposed by that sentence, the Supreme Court has said that a court, in exercising its discretion to grant relief under the Act, should also consider three factors:

  • the closeness of the relationship between the person or entity to whom the proposed writ is directed and the matter over which the court has jurisdiction;
  • the reasonableness of the burden to be imposed on the writ’s subject; and
  • the necessity of the requested writ to aid the court’s jurisdiction.

In re Apple, Inc., (citing United States v. N.Y. Tel. Co., (a case involving surveillance on rotary telephones, the great-grandfather(s) of today’s iPhones)). In the New York drug case, for instance, the court found that the DOJ’s application for Apple’s assistance satisfied none of these discretionary factors because (1) Apple’s relationship to the accused’s conduct and the DOJ’s investigation was too attenuated; (2) requiring Apple to assist in decrypting the suspect’s iPhone would place too great a burden on Apple; and (3) necessity could not be established because the DOJ previously acknowledged that it possessed “specialized software” that could potentially accomplish the decryption. Id. at *17-*25.

The All Writs Act, however, is not just available in criminal cases; it can have far-reaching application in commercial cases. For example:

  • The Supreme Court ruled that a court of appeals could properly issue an injunction, under the Act, preserving the status quo while the Federal Trade Commission reviewed the legality of a proposed merger. See F.T.C. v. Dean Foods Co.;


Although relief granted under the All Writs Act is rare and subject to broad judicial discretion, it may nevertheless have utility for commercial litigators. So if you ever find yourself within a gap in the federal courts’ powers and have nowhere else to turn, (maybe) there’s an “Act” for that!