All Writs Act

"The All Writs Act", lecture by Jonathan Mayer

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."

The act in its original form was part of the Judiciary Act of 1789. The current form of the act was first passed in 1911 and the act has been amended several times since then.

Act

The text of the Act is:

(a) 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.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

Conditions for use

Application of the All Writs Act requires the fulfillment of four conditions:

• The absence of alternative remedies — the act is only applicable when other judicial tools are not available.
• An independent basis for jurisdiction — the act authorizes writs in aid of jurisdiction, but does not in itself create any federal subject-matter jurisdiction.
• Necessary or appropriate in aid of jurisdiction — the writ must be necessary or appropriate to the particular case.
• Usages and principles of law — the statute requires courts to issue writs "agreeable to the usages and principles of law."

In the case U.S. v. New York Telephone Co. 434 U.S. 159 (1977), the Supreme Court established a three-factor test for the admissible application of the All Writs Act: the party ordered to perform an action cannot be too far removed from the case, the government's request cannot impose an undue burden on that party, and the party's assistance is necessary.

Use in electronic devices

The government has revived the All Writs Act in cases against terrorists, notably to gain access to password protected mobile phones in domestic terrorism investigations.

October 2014

One case in which the act's application drew public attention was on October 31, 2014, by the U.S. Attorney's Office in New York's Southern District to compel an unnamed smartphone manufacturer to bypass the lock screen of a smartphone allegedly involved in a credit card fraud.

Apple Inc.

On November 3, 2014, the Oakland Division of the U.S. Attorney's Office named Apple Inc. in papers invoking the Act, which were filed in the United States District Court for the Northern District of California. Court documents obtained by Ars Technica reveal that federal law enforcement sought to get Apple to extract data from a locked iPhone 5C as part of a criminal case.

On February 16, 2016, the Act was invoked again in an order that Apple Inc. create a special version of its iOS operating system, with certain security features removed, for Federal law enforcement officers to use as part of an investigation into the 2015 San Bernardino terrorist attack. The head of the FBI stated that what was requested was that a feature be disabled, viz. that Apple disable the iPhone's feature to erase encrypted data on the device after 10 incorrect password attempts. Apple claimed that, were they to comply with this demand for automated password entry with no consequence for failed attempts, simple brute force password attacks would then be trivially easy for anyone with access to a phone using this software. Apple CEO Tim Cook responded in an open letter warning of the precedent that following the order and ensuing universal iPhone vulnerability would create. On the same day, the Electronic Frontier Foundation announced its intention to support efforts by Apple Inc. to resist the order. Several public figures have joined the debate, contributing to the media controversy surrounding this invocation of the Act.

In court filings, Apple has argued that the federal government is overstepping its bounds as Congress had codified the Communications Assistance for Law Enforcement Act of 1992, which addresses the guidelines of private entities to act in relation to such circumstances. The federal government disagrees. Saritha Komatireddy, arguing for the government in October in Brooklyn, countered: “CALEA doesn’t even come close to addressing the issue we have here.” DOJ defended the authority of the All Writs Act in its filing on February 19, 2016 against Apple and slammed any hearkening to CALEA: “Put simply, CALEA is entirely inapplicable to the present dispute and does not limit this Court’s authority under the All Writs Act to require Apple to assist the government in executing a search warrant.” DOJ argued the case involved "data at rest rather than in transit" -- an important distinction in CALEA applicability.

Sen. Ron Wyden, D-Ore., a privacy advocate on the Senate Intelligence Committee, argued: “If the FBI can force Apple to build a key, you can be sure authoritarian regimes like China and Russia will turn around and force Apple to hand it over to them,” he said Friday in a Medium blog post. “They will use that key to oppress their own people and steal U.S. trade secrets.”