Pixel Envy

Written by Nick Heer.

Motion to Vacate

Apple filed a motion to vacate, which is a legal term for “take that decision back”. It’s 65 pages in total, but remarkably readable for a legal document. You might still need a coffee to chug through it, though:

The All Writs Act (or the “Act”) does not provide the judiciary with the boundless and unbridled power the government asks this Court to exercise. The Act is intended to enable the federal courts to fill in gaps in the law so they can exercise the authority they already possess by virtue of the express powers granted to them by the Constitution and Congress; it does not grant the courts free-wheeling authority to change the substantive law, resolve policy disputes, or exercise new powers that Congress has not afforded them. Accordingly, the Ninth Circuit has squarely rejected the notion that “the district court has such wide-ranging inherent powers that it can impose a duty on a private party when Congress has failed to impose one. To so rule would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction.”

Congress has never authorized judges to compel innocent third parties to provide decryption services to the FBI. Indeed, Congress has expressly withheld that authority in other contexts, and this issue is currently the subject of a raging national policy debate among members of Congress, the President, the FBI Director, and state and local prosecutors. Moreover, federal courts themselves have never recognized an inherent authority to order non-parties to become de facto government agents in ongoing criminal investigations. Because the Order is not grounded in any duly enacted rule or statute, and goes well beyond the very limited powers afforded by Article III of the Constitution and the All Writs Act, it must be vacated.

This is a totally cogent position, especially when coupled with Apple’s explanation on the eighth and ninth pages that CALEA covers the areas of the law in question and, therefore, the All Writs Act cannot apply. There’s a lot at stake here; this decision needs to be right for now, and for the future. The myopic arguments so far made by the FBI and other law enforcement agencies are dangerous in their precedent.