Privacy SOS

Congressman Ted Lieu: Don’t apply 18th century law to 21st century tech

California congressman Ted Lieu yesterday wrote FBI director Jim Comey a public letter, asking the nation’s top cop to withdraw “the FBI’s demand of Apple” that it “create software it does not have in order to weaken its smartphone encryption system.” 

The profound issues at stake should not be decided, as you state, either by corporations or the FBI. Neither, however, should these critical issues be decided by an unelected magistrate judge’s or Department of Justice’s interpretation of the All Writs Act, a law first passed in 1789, nearly 90 years before the light bulb was invented. As a computer science major, I have seen far-reaching unintended consequences when government applies outmoded concepts to our fast-changing technological world. Trying to apply an 18th century law to a 21st century technology company should not give anyone any confidence in the result.

Using the court process and an antiquated law to coerce a private sector technology company is especially inappropriate in this situation because Congress has been actively debating the very issue of the appropriateness of mandating “back doors” and other ways to weaken encryption. Numerous Congressional committees, including the Oversight Committee, have held hearings on privacy and encryption issues. Legislation has been introduced, or soon will be introduced, on these exact issues.

If the magistrate judge’s strained interpretation of the All Writs Act were upheld to give the FBI the right to force a private sector company to weaken its encryption defenses in this case, the precedent would open the floodgates for all future prosecutors to make the exact same demands in any case involving a smartphone that government cannot decrypt. The precedent set in this case would essentially enact a policy proposal to weaken encryption that has not yet gained traction in Congress and was previously rejected by the White House. 

Lieu’s letter comes just days after the release of a Congressional Research Service report on encryption’s implications for law enforcement.

© 2023 ACLU of Massachusetts.