The All Writs Act isn’t the unbounded power Apple and co. should fear

Unbounded government authority is a concern that we have been writing on since day one of TechPolicyDaily.com. Recently, one of the common concerns expressed by those supporting Apple in its fight with the FBI over the San Bernardino iPhone is that the legal authority on which the judge’s order requiring Apple to assist in the DOJ’s efforts to gain access to the phone is based – the All Writs Act (AWA) – is “limitless.”This understanding is flawed. But if tech advocates are truly concerned about limitless government power – and I hope they sincerely are – they should look no further than the truly incredible authority claimed by the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) in recent years.

What unbounded government power really looks like

In its dispute with the FBI, Apple and its allies have characterized the government’s use of the AWA as almost limitless: If the court can order Apple’s assistance in this case, they say, then courts could order any company anywhere to offer any assistance to any law enforcement agency for any reason that anyone could imagine. That understanding is wrong – use of the AWA is subject to substantial limits. As I have explained previously, the AWA is, in fact, a rather limited law. It can only be used in furtherance of existing judicial authority, where Congress has not provided the courts with alternative means for implementing that authority, and where the equities support its use in the furtherance of justice. It can only be used pursuant to court order and subject to judicial supervision. Contrary to frequent assertions by Apple supporters, it cannot be used to require the impossible or to dictate prospective design decisions. And its use is inherently based on a fact-specific, case-by-case analysis, such that its use in one case (for example, the San Bernardino case) does not necessarily authorize its use in other cases.

The real impact of Apple’s argument in this case is that it shines a bright light on the opportunism of outcome-oriented tech advocates.

Compared to the truly incredible authority claimed by the FCC and FTC in recent years – powers unsanctioned by Congress and often not bounded by meaningful judicial review – the AWA seems a meek little statute. If tech advocates are serious in their concerns about unbounded government authority, they would be better served to focus their attentions on the true excesses present in the administrative state. Rather, they opportunistically raise these concerns in cases like this, where it suits their short-term policy agenda. Indeed, when it comes to general concerns of agency overreach, tech advocates have often been among the loudest voices urging the expansion of government authority and the disregard of limiting principles and judicial safeguards.

Recent FCC and FTC overreach

Compare the government’s use of the AWA in this case to the powers claimed by the FCC in recent years. The commission has consistently pushed at the outer edges of its statutory authority, using every ambiguity to expand its powers. These actions have been upheld by the courts under both the deferential Chevron doctrine and also the myth underlying that doctrine, which states that that our stale-mated Congress will provide statutory clarity to check agency excesses. What’s more, the commission has effectively used its power to report on the state of competition and pace of technological deployment in various parts of the communications sector to further bootstrap its authority. Rather than claim authority directly, it redefines the facts of the industry and then uses those facts to justify its claimed authority. The effect of this staggered approach to bootstrapping authority is to make it much harder to judicially challenge agency action.

The government’s use of the AWA also pales in comparison to the powers claimed by the FTC – the agency that has perhaps most aggressively sought to regulate the tech sector. Under its Section 5 authority to take action against unfair and deceptive acts and practices, the FTC has overtly developed its own bodies of law entirely untethered from congressional intent or direction. Indeed, its effort to develop a body of data security law was initiated precisely because Congress consistently failed to give it express authority to regulate data security. That’s right: The commission decided to use its general Section 5 authority to regulate data security practices after and because Congress repeatedly declined to give it express authority over data security practices. (For those keeping score at home, Apple and its various allies argue in the San Bernardino case that the fact that Congress has failed to authorize courts to issue orders like the one the FBI is seeking demonstrates that Congress intends that such orders not be issued.)

And both the FTC and FCC benefit from and embrace practices that make it extremely difficult, if not effectively impossible, to seek judicial review of agency action. The FTC has led the way on this front, choosing to rely extensively on in-agency adjudications to enforce and develop its regulations. Parties subject to these adjudications have the benefit of only minimal due process protections until their case has been decided both by an initial adjudication and then an appeal to the full commission. This process can take several years and cost millions of dollars – and, remarkably, appeals to the full commission are almost never successful (there has only been one successful appeal of an initial decision in the past two decades), despite the fact that the agency frequently loses cases that it brings to federal court. In recent years the FCC has increasingly embraced a similar, adjudication-oriented approach to enforcing and developing its regulations – and it is poised to double down on this approach as it moves into privacy regulation.

And, of course, all of this is on top of the FCC’s and FTC’s longstanding approach of using merger conditions to impose requirements on merging firms that are entirely outside the scope of the agency’s legal authorities. In other words, both the FTC and FCC have broad power to define the scope of their own legal authority, to develop rules and impose sanctions on firms independent of any express congressional intent, and to do so with minimal due process and often no meaningful judicial recourse. Compared to this, concerns that the AWA is an unbridled grant of power are hard to fathom. Exercise of power under the AWA needs to be tethered to some clear judicial authority, it needs not to have been supplanted to other congressionally authorized procedures, it requires express judicial review and oversight, and it needs to be otherwise in line with established equitable principles.

The concern of laws without limiting principles is one of the most important we face today. For many of us frequent critics of the FCC and FTC, this it is our animating concern. And it is a problem much larger than the tech sector – indeed, it is arguably one of the central issues facing the current generation of legal scholars. For what It’s worth, I’m glad to see Apple and the tech industry generally expressing concerns about unbounded government power in the iPhone case. Even if they are misplaced here, I hope we’ll be able to count them as allies in the broader fights against much more egregious examples of unbounded governmental power.

This post was originally published on TechPolicyDaily.