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Apple v. DOJ/FBI – Is Justice Scalia Rolling Over in His Grave?

Long a consistent and ardent judicial champion of the constitutional protections afforded citizens under the Fourth and Sixth Amendments, one cannot help but wonder how Justice Scalia would have viewed the showdown between Apple and the Department of Justice.

The DOJ and FBI intentionally selected a headline case to push for legal authority that Congress has thus far declined to give them. Doing so in the underlying matter of the gruesome San Bernadino terrorist attack committed by a husband and wife pair of Islamic extremists plays on public fear, swaying the pole of public opinion towards law enforcement. Relying on the All Writs Act of 1789 – a law passed almost 100 years before the telephone was even invented! – a federal magistrate judge has ordered Apple to create new software, “a master key” if you will, to bypass anti-hacking protections created by Apple.

Curiously, DOJ and prosecutors accuse Apple of slapping the San Bernardino victims in the face but do not mention that Apple has cooperated with DOJ and the FBI in this case, and more importantly, DOJ already has all of the particular iPhone’s cellular service data. This includes the suspect’s texts, incoming and outgoing call numbers, call duration, and GPS location data. DOJ and the FBI obtained it directly and lawfully from the suspect’s cellular service provider or “telecom”-because federal law, the Communications Assistance for Law Enforcement Act, 47 U.S. Code § 1001 et seq. (CALEA), requires telecoms to assist law enforcement in obtaining such call related data. This type of data is not only on the iPhone; the cellular service provider in the course of its business retains and stores this data. Pursuant to CALEA, the cellular service provider in this case has provided the data to DOJ.

Although there have been numerous legislative proposals to amend CALEA to bring Internet Service Providers and entities like Apple and Google under the Act’s requirements of telecom assistance to law enforcement investigations, Congress continually has refused to pass such legislation. Why? – Because there is a significant difference between our call data and the complete contents of our smartphones. Our smartphones have vast quantities of extremely personal information on them, probably more than a law enforcement officer could find out by executing a physical search for hours on end of our homes. Think of the apps on your smartphone and what you do with your smartphone-smartphones contain bank account details, online search history, your groups and associations, sexual and religious preferences, detailed data about all of our friends and family, health information, and our most personal communications, not to mention location tracking details of every place we have visited, online and in the physical world.

Consensus among tech experts is that DOJ’s demands will force Apple to degrade the security of their technology and make our data more vulnerable to hacking. Moreover, if Apple is ultimately compelled to do so in this case, it will create a strong judicial precedent, empowering the executive branch with unfettered authority to seek similar relief time and time again. When a court relies on a 1789 law as its authority for ordering Apple to create new software to counteract security measures on an iPhone, it should raise some red flags. We should all keep in mind that, if Apple is compelled to do so, the judicial precedent will be created, and future courts will not have to look back to 1789.They will look to this case.

The answer lies with Congress, and Congress needs to pass laws that evolve with the technology while preserving our constitutional liberties. No easy feat to be sure, but it is better than judicial legislation.