Ted Olson

Apple has hired high-profile attorneys Ted Olson, above, and Theodore J. Boutrous Jr. to fight the FBI’s demand for help hacking into an iPhone. (Win McNamee / Getty Images)

Maura Dolan and Victoria Kim
February 18, 2016

A court order requiring Apple to create a way to help law enforcement get access to a terrorist’s smartphone amounts to an “unprecedented” stretch of an antiquated law — one that is likely to spark an epic fight pitting privacy against national security, legal scholars said Thursday.

Typically, law enforcement has filed for warrants under seal, and courts have issued orders under seal, to protect the confidentiality of ongoing criminal investigations.

But a federal judge in New York decided last fall to unseal portions of such a case. It revealed that Apple had turned over information to law enforcement about 70 times in recent years, according to the government, based on court orders citing an obscure 1789 law called the All Writs Act. The act, passed in the judiciary’s infancy, allowed courts to issue orders if other judicial tools were unavailable.

This week’s court order was different from those issued in the past, however. It requires Apple to create new software, experts said, not provide technology already at hand.

“This is a new frontier,” said Jennifer Granick, director of civil liberties at Stanford Law School’s Center for Internet and Society. “I know of no other statutory provision that would arguably create an obligation for device manufacturers to help out the government.”

Apple may not have fought orders in the past because “it was easy for Apple to give the data,” she said.

“But the architecture of the phones changed,” she said. “This is about Apple creating a new forensic version of its software to do the job the FBI wants it to do.”

Apple was caught off guard by the government’s decision to go public with its request. Legal experts said the government probably decided to file publicly because it wants a debate on the issue framed by a case that poses strong emotions and fears.

The company has hired Ted Olson and Theodore J. Boutrous Jr., two of the lead lawyers who successfully challenged California’s previous ban on same-sex marriage.

They are expected to argue the order violates constitutional provisions as well as the All Writs Act and would create bad public policy.

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