A 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.