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Apple Legal Fight Front and Center as TECHSHOW Kicks Off

The American Bar Association TECHSHOW 2016 will tackle topics ranging from cybersecurity, privacy, NSA whistleblower Eric Snowden, hacks, leaks and security breaches- all on the heels of a spirited debate regarding tech giant Apple’s public concerns, and litigation related to, government overreach.

The conference will take place at the Hilton Chicago Hotel from Wednesday, March 16 to Saturday, March 19. As technology changes, litigators, the courts, businesses and organizations continually face challenges; some that have never before been encountered.

Jody R. Westby, Esq., CEO of Global Cyber Risk LLC, and an adjunct professor at the Georgia Institute of Technology’s School of Computer Science said the courts are grappling with how to appropriately apply the law. “Technology has raised all sorts of legal issues and it will continue to do so. There have been court cases over the use of infrared technologies, GPS tracking devices, wireless interceptions, [and more],” she says. “There will continue to be cases where the use of technology is perceived as infringing civil rights or constitutional rights. As the public and attorneys, in particular, become more aware of how technologies can be used by law enforcement, new issues will continue to be raised. And they will be raised in many jurisdictions and some will have conflicting opinions.” 

Considering the differences in how varying jurisdictions interpret and apply the law, some cases, she says, like those involving government requests for Apple to crack into recovered cell phones, may end up in the nation’s highest court. Apple is involved with cases in both New York and California regarding government requests to extract data from iPhones--the latter involving the phone of Syed Farook, one of the San Bernardino shooters--and while the cases differ in a number of ways, both heavily hinge on how the courts interpret the All Writs Act of 1789.

The All Writs Act, according to the legal information institute of Cornell University Law School, states: “The Supreme Court and 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.”

Westby says although the cases in New York and California had different outcomes with respect to the government’s request, she said she does not think the AWA is an appropriate tool to compel Apple in either instance. “In my opinion, it is a stretch to use AWA because it requires that issuing the writ must be ‘agreeable to the usages and principles of the law,’ and I think that is a stretch. We have clear law on wiretaps, stored communications, and pen register/trap trace data," she says. "These laws have specific requirements and the use of AWA in this instance tends to extend existing law.”

“In other words, the government can get a court order for the data, but it can’t reach it because it is locked or encrypted," she continues. "The laws under which the order was issued does not enable the court to order it unencrypted or unlocked, so that is really extending the law into new territory, which is not within the “usages and principles of the law.’”

An Amicus Curiae brief recently submitted by a contingent of law professors echoed her sentiment. It stated the burdens on Apple, possibly hundreds of labor hours and the creation of a new software program, are among some of the reasons it is correctly arguing the order.

“Our research has not found any case that uses the All Writs Act to require a third-party private entity to design and create new software. Some courts have compelled disclosure of already-existing information in cases where the All Writs Act is found applicable,” it reads. “In contrast, the order the government demands in this case would require substantial expenditures of time and talent above and beyond what is appropriate under the All Writs Act.” Westby added the case could set a bad precedent and establish a “law enforcement back door” that could lead to unwarranted data leaks once unlocked.

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