As United States Attorney General Eric Holder said in a recent speech to Northwestern University law students, the US must always take care that its actions, even those in the name of national security, are “grounded on the bedrock of the Constitution”. In 2009, at a speech at the Nation Archives, President Obama claimed that “our values have been our best national security asset”. Despite this consensus on the benefits of recognizing the rule of law when ensuring security, many issues that involve these two interests inevitably invite a legal tug-of-war. The most consternating legal issue of our time has been digital privacy in an age of an increased need for surveillance. In 2015, an iPhone gathered as evidence from a San Bernardino scene of a domestic terror attack became the nexus of this debate. According to the 1789 All Writs Act, courts may issue any warrants needed in order to pursue justice. Federal investigators used this as the legal basis to push Apple, the manufacturer of the iPhone, to design a special operating system to break the encryption. Apple contended that the act did not cover the case and that the government could not force a private company to violate the integrity of their own product at their own expense.
Writing in the blog Lawfare in March 2016, Bobby Chesney and Steve Vladeck, a pair of legal experts at the University of Texas School of Law, tried to find a middle ground to this dispute. A 1977 Supreme Court case clarifying the usage of the All Writs Act stated that a third party, such as Apple, was required to help aid an investigation. This nullified Apple’s defense that the act did not apply. However, the case also laid out terms that governed when and how the government could ask a third party to aid an investigation. In order for a third party to be compelled to assist investigators, it had to be able to show that there was not an “undue burden” on the third party. In this case, the federal investigators would not win because Apple would have to design a completely new operating system just for this case, and then presumably bear the costs of keeping that operating system under digital lock and key or build another operating system the next time an investigation required it.
While it seems that Apple wins this legal battle, it may have lost the legal war. If the standard is now set at an “undue burden” for accessing this data, then any attempts for Apple to try and take data and monetize it also opens up the ability for the same data to be used in investigations. Federal investigators would therefore be pleased with Chesney and Vladeck’s solution. However, the biggest winners may be privacy activists, as freezing this conflict over data requires keeping it private. Ultimately, national security gains when the rule of law is respected and maintained when facing twenty-first century challenges.