CRIMINAL JUSTICE ISSUE – The San Bernardino iPhone All Writs Act Case.

The public has heard many different views, issues, thoughts and concerns in the media about the constitutional issues surrounding Apple and the FBI’s use of the All Writs Act.  One of the main critiques of the popular media is encapsulated by a New Yorker Columnist, “By using All Writs, the government is attempting to circumvent the constitutionally serious character of the many questions about encryption and privacy.” (New Yorker Amy Davidson, February 19, 2015).  The main reason for Apple appealing the Federal order is the protection of the potential compromising of many law abiding citizen’s data.

“The All Writs Act is a United States federal statute, codified at 28 U.S.C. § 1651, which authorizes the United States federal courts to ‘issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.’ ” (

I believe that the Constitutionality of the All Writs Act has its constitutional antecedents in the Necessary and Proper Clause of the U.S. Constitution, “The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any Department or Officer thereof (U.S. Const. art. I, ss. 8, cl. 18)

Apple filed a motion to vacate order using the following specific 2 pronged argument, each prong containing several sub-prongs: (ED No. CM 16-10 (SP)) (Wall Street Journal Published Motion)

  1. The All Writs Act Does Not Provide a Basis to Conscript Apple to Create Software Enabling the Government to Hack into iPhones.
    1. The All Writs Act Does Not Grant Authority to Compel Assistance Where Congress Has Considered but Chosen Not to Confer Such Authority.
    2. New York Telephone Co. And Its Progeny Confirm That the All Writs Act Does Not Authorize Courts to Compel the Unprecedented and Unreasonably Burdensome Conscription of Apple That the Government Seeks.
  2. The Order Would Violate the First Amendment and The Fifth Amendment’s Due Process Clause.
    1. The First Amendment Prohibits the Government from Compelling Apple to Create Code.
    2. The Fifth Amendment’s Due Process Clause Prohibits the Government from Compelling Apple to Create the Request Code.

(verbatim wording from ED No. CM 16-10 (SP))

The popular media seem to have gotten the issues wrong.  This is what they like to do as spin doctors.  Apple’s official argument doesn’t seem to have anything to do with the security of people’s iPhone data, but with Apple’s assertion that the government lacks the authority to force Apple to write a new software operating system and that it would be “Unreasonably Burdensome”.  Apple’s pocketbooks, not our information security.  They paint a saintly picture of themselves in the public media.

This is a very weighty abandoned case for us to be left wondering a decisional outcome.  The FBI is probably going to pull out all the same scholarship and argumentation in a future case, and so will Apple or whichever other Smartphone Manufacturer.  The government just does not have as clear cut and weighty a reason to fight a case against a private company along these same lines without the National Security issue of Terrorism.  Drugs just do not carry the same amount of weight though they have National Security Implications potentially in the funding routes of insurgency and terrorism.  This fact can work to the benefit of a regular level Criminal Defense Client.  The government just does not have a weighty enough of a reason in a drug case to work for an order to unlock an iPhone or other Smartphone the way it did in this case.

I think the All Writs Act is properly applied and don’t exactly know how to view the First and Fifth Amendment issues brought up in the motion to vacate.  The whole media circus was focused on protecting our information as the iPhone using public.  It would have been interesting to see this case ruled on and to have case law to apply to Criminal Defense Cases in the future based on whether the government has the right to apply the All Writs Act to the creation of a backdoor into software or whether it is a violation of the First Amendment to do that.

Another interesting issue that was not specifically dealt with is the idea of a technology company not opposing a court order to make a backdoor.  Would that be a violation of the Defendant’s privacy.  I think about these issues a lot because I do Criminal Defense Paralegal Work and also because I am the Founder of a very small software program project online called  I think we will see another case in the next 5 years dealing with this same type of issue.

Just to get you thinking, what are your thoughts on whether the All Writs Act was properly applied and if the Federal Order would have violated the First and Fifth Amendment?



U.S. Const. art. I, ss. 8, cl. 18