Apple v the FBI: why the 1789 All Writs Act is the wrong tool

Publication Type: 
Other Writing
Publication Date: 
February 24, 2016

Apple’s celebrated fight with the FBI over the security of its encrypted iPhones has shone the spotlight on an old and obscure federal law from 1789 known as the All Writs Act (AWA).

The AWA is a short little statute, giving federal courts the power to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

The FBI argues that the AWA empowers a court to order Apple to create custom software to circumvent the security on an iPhone possessed by one of the San Bernadino shooting suspects.

Passed by the First Congress in 1789, this little law is a piece of Swiss Army knife legislation that the FBI is trying to turn into a giant sword, out of all proportion to what it is supposed to do. But if we want to make sense of the current security and privacy controversy pitting the FBI against the tech giant, it helps to understand what the AWA is and what its limits are.

Back in the summer of 1787 ...

Imagine that you are setting up a democratic government for the first time. You’d want to give the government enough power to govern effectively, but you’d also want to set up limits so that the new government didn’t become a tyranny. This is precisely the problem that the drafters of the US constitution faced when they met in Philadelphia in the summer of 1787.

Their solution was clever and elegant: give the new national government explicit but limited powers to do things like create courts and post offices and regulate commerce, but nothing more. In order to fill in between the lines, the drafters also gave Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

This meant that Congress wasn’t limited by the strict words of the constitution, but that when it went beyond them (for example, to create a national bank), the powers remained limited.

Two years later, when many of those drafters were sitting in the First Congress, the same problem popped up again. Congress wanted to create courts, and to give those courts powers to order people to do things in order to serve justice. A list of everything a court could order would be long and might miss something, but it also didn’t want to make the powers of courts limitless because of that pesky tyranny problem.

The solution (using the Necessary and Proper Clause) was the AWA: give courts flexible powers to issue “necessary and appropriate” orders. That way, the courts would have the flexibility to do their jobs, but to do them subject to appropriate limits.

Laws like the Necessary and Proper Clause or the AWA thus strike a careful balance: They give the government the power to do its job in a way that is flexible but constrained by law. They are exceptions to the rule that all powers must be spelled out and, as exceptions, they must not be allowed to swallow the rule.

Reaf the full piece at The Guardian