The Justice Department has sought and obtained an order from a lower court directing Apple to do the technical redesign necessary to enable the FBI to break into the iPhone used by a terrorist in the San Bernardino attack.  The debate now is, can and should Apple be compelled to help the FBI in this case?

The way to determine the answer to the “can” question seems cut and dried: either there is a statutory or constitutional basis for the demand, or there isn’t.  But the answer to the “should” question appears to be highly charged and subject to raging dispute and debate.  In actuality, however, the answer to the “should” question also answers the “can” inquiry.

The All Writs Act, which is the basis of the Justice Department’s arguments, provides that “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.” 28 U.S.C. § 1651(a).  There is no question here as to jurisdiction, so the two issues are (1) is the writ to Apple necessary or appropriate, and (2) is it agreeable with legal usage and principle?  Construing this language, the Supreme Court long ago hit on a short hand test to answer these questions, saying that the courts can do pretty much everything they want under the All Writs Act with the caveat that “unreasonable burdens may not be imposed.”  United States v. New York Tel. Co., 434 U.S. 159, 171 (1977).  That Apple is not a “party” to the legal action involving the San Bernardino matter, is not “engaged in wrongdoing” and has not even “taken any affirmative action to hinder justice” is not determinative, according to the Supreme Court.  Id.

The concept of “reasonableness” essentially balances the burden on the target (here, Apple) with the court’s need for the action it is directing.  In this case, the court’s need is straightforward.  Without Apple’s help, there is no conceivable way that law enforcement, and ultimately judicial, authorities can obtain the evidence on the IPhone.  So, the focus turns entirely to the burden on Apple.

Assuming that the Government pays Apple the time and materials costs involved in the work Justice is demanding, the determinative issue will be the impact on Apple’s business.   Apple claims, in this regard, that the burden is extraordinary, and in effect, crippling to its business model.  Apple argues that it builds and markets products that are secure, and creating a back door into its products is an insurmountable threat to data security.  Consequently, Apple says, the entire concept on which it has built its business and on which the Internet of Things needs to operate, is under challenge.  In short, Apple is claiming that, given the risks to its business, any demand by the FBI to help it break into the IPhone to investigate a crime already committed (as opposed to stop a real threat of an imminent crime) is an unreasonable demand per se.

Arrayed against this argument is Justice’s technical position that it is asking for only limited assistance, is not asking for a back door, and is not compromising data security for Apple or anyone else’s products.  But, don’t be surprised if the Justice Department’s argument in the court, and certainly its contentions in the public arena, morphs quickly into something like the Supreme Court’s admonition in upholding the military draft law, that “it may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it.” Arver v. United States, 245 U.S. 366, 378 (1918).

So, at the end of the day, the court likely will need to determine if a citizens’ obligation to help the Government solve a past crime stops when the Government is risking the essence of the way the citizen lives.  If the court finds the citizen’s rights trump the Government’s needs, then it will rule that it lacks authority under the All Writs Act to direct Apple to help the FBI.  If the court finds that the Government’s needs are greater than the citizen’s, it will find authority for the order under the All Writs Act.  In other words, the answers to the “should” question will also answer the “can” question.