In a criminal investigation, if important information were behind a locked vault and the vault manufacturer had a master key to access the vault, the government would be on solid grounds to request this master key. But what if no master key existed? What if the vault was built and sold to preclude the existence of a master key? Can the government conscript the manufacturer to develop a master key where none exists, to invent something novel, thereby compromising the security of all owners of the vault? This is essentially the question a magistrate judge in California is grappling with in the wake of the San Bernardino mass shooting.

The government seeks to access the iPhone of the deceased attacker through use of a 227-year-old law, the All Writs Act. The government claims that this statute authorizes an order forcing Apple Inc. to create software that does not currently exist and that would effectively be a master key to access any iPhone — this is an order that no court has ever authorized in 227 years under this law. How? To justify this proposed order, the government claims that conscripting Apple to create a master key is the same as requesting a key already in existence. Such a conclusion is not just a stretch, it is illogical, particularly in light of the history of the All Writs Act.

The government posits that government agents should always be guaranteed access to any type of information, but these claims are also wildly inconsistent with the history in which the statute was passed, and there is a long history in the United States of technology securing information, even against the government. To allow the government’s interpretation of the All Writs Act would require completely disregarding the context in which it was passed.

Writs of Assistance and All Writs Act

The All Writs Act was enacted as part of the Judiciary Act in the First Congress of the new United States. It was enacted into law on Sept. 24, 1789, the day before the Fourth Amendment was approved by Congress. Like many statutes in the founding era, the All Writs Act was passed in the context of the pre-existing legal system under Great Britain, where court orders were referred to as “writs of assistance.” Understanding these “writs of assistance” is important, because as the U.S. Supreme Court has held, the Fourth Amendment was “most immediately the product of contemporary revulsion against a regime of writs of assistance.”

Writs of assistance, more commonly called “writs of aid,” were a written order, a writ, issued by a court. Using “writs of assistance,” the king would authorize wide-ranging searches of anyone, anywhere, and anytime without being suspected of a crime. “A writ,” as Hiller Zobel explains, was “a command to an officer in the name of the sovereign.” Writs of assistance “could be used to enlist the aid of any officer of the crown in conducting a search of a dwelling, shop or warehouse for smuggled goods.”

In 1761, a young John Adams would sit in a Boston court as James Otis argued against writs of assistance authorizing arbitrary search and seizure practices. John Adams would take notes of the argument and wrote an extended “abstract” of the case. Otis was unequivocal in limiting the powers of writs, as he referred to limitless writs as “the worst instrument of arbitrary power.” John Adams would write, “Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In fifteen years, namely in 1776, he grew up to manhood, and declared himself free.” Otis’ argument has often been cited by the Supreme Court as reflecting the framers' intent. These “hated writs” directly motivated James Madison's crafting of the Fourth Amendment and were on the minds of the founders as they enacted the All Writs Act.

To sustain the government’s reading of the All Writs Act today, we must assume that the same week that Congress was passing the Fourth Amendment to limit the executive branch’s power to obtain unlimited writs for search and seizure from the courts, Congress passed a simple two-line bill designed to grant courts nearly unfettered discretion to issue writs in violation of our liberty. Such a reading is even more contorted and indefensible in light of an originalist understanding of the Ninth Amendment, the Due Process Clause of the Fifth Amendment, and the Privileges or Immunities Clause of Article V protecting essential liberties from government intrusion.

The end result of the government’s argument today would be, effectively, to make it impossible for companies to make secure digital devices; if companies are required to work to undermine their own security, or build in backdoors by design, then secure digital devices are impossible. This outcome must be viewed as inconsistent with the goals of the legislators who wrote the All Writs Act in 1789.

Securing Information Isn’t New

While the Congress of 1789 didn’t have digital devices, it did have long experience with physical locks. While today, most locks are not viewed as a serious impediment to law enforcement because of the ease of accessing such locks through modern technology, in the 1780s there were physical locks that were not accessible to law enforcement.

In 1785, Joseph Bramah developed the “Bramah safety lock,” which was unpickable. Bramah would establish a contest where he offered 200 guineas to the first “artist” who could make an instrument that picked the lock. Later the Bramah lock was joined by the Chubb lock, another unpickable lock. At one point, one state even offered a convicted burglar parole if he could break the Chubb lock.

The “All Writs Act” was passed in 1789, at a time when the top locks were unpickable to anyone. Anything behind these locks was potentially off limits to law enforcement. The Bramah lock was eventually picked in 1851. Yet over that 66-year history, no court appears to have ordered Chubb or Bramah to try to defeat their own security mechanism, despite the fact that, like Apple today, Chubb and Bramah were best positioned to find vulnerabilities in their own locked devices. In the Farook case, the government argues that its requested extraordinary measure is needed in part because of the danger of the data self-destructing through more than 10 password attempts, but the Chubb and Bramah locks also had self-destruct features of a sort.

Conclusion

James Otis argued that the writs of assistance were “the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.” Otis referred to the practice of writs that were universal, directed “to all,” as enabling “a tyrant in a legal manner.”

Today, as the government is requesting that a company be conscripted against its will to create a master key, we should keep in mind the caution of James Otis, an important founding father. What is to stop the government from further intrusions upon our liberty?

What is to stop the government, through use of a court order, from acting as a “tyrant in a legal manner”? If ordering a company to hack into its own products and imperil the liberty and safety of its consumers does not count as an abuse of such writs, then what would? While the government sees no difference in ordering individuals to turn over records or master keys already in existence versus conscripting individuals or companies to create a master key against their will, surely the founders would have.

Originally published in Law360 on March 23, 2016.