Every once in a while, President Obama removes his Law Professor in Chief hat and puts on his I Get Terrifying Briefings Every Day hat. Last week at SXSW, as he delivered general remarks about the encryption debate, he tried to sound reasonable and professorial: “We recognize that just like our other rights — freedom of speech, freedom of religion, et cetera — that there are going to be some constraints that we impose in order to make sure that we are safe, secure, and, uh, living in a civilized society,” he said, repeatedly making an embracing gesture with his palms. Symbolically keeping us safe, encircling us with his hands, the father of Malia and Sasha blinked a bit rapidly as he said this.
The president must have known that the FBI was on shaky legal ground when he spoke in Austin this past week. But he had clearly decided well before getting on stage that he would side with the people telling him that the world is an increasingly terrifying place. Law would have to give way.
“I am way on the civil-liberties side of this [government surveillance] thing,” he said later, sucking in his lips and looking away from his interviewer into the middle distance, showing both that he was thinking about the problem and a little uncertain. “I anguish a lot over the decisions we make.” He cautioned the large audience listening not to be “absolutist,” reminding us that “the dangers are real.”
The problem for the president is that when it comes to the specific battle going on right now between Apple and the FBI, the law is clear: twenty years ago, Congress passed a statute, the Communications Assistance for Law Enforcement Act (CALEA) that does not allow the government to tell manufacturers how to design or configure a phone or software used by that phone — including security software used by that phone.
CALEA was the subject of intense negotiation — a deal, in other words. The government won an extensive, specific list of wiretapping assistance requirements in connection with digital communications. But in exchange, in Section 1002 of that act, the Feds gave up authority to “require any specific design of equipment, facilities, services, features or system configurations” from any phone manufacturer. The government can’t require companies that build phones to come to it for clearance in advance of launching a new device. Nor can the authorities ask a manufacturer to design something new — like a back door — once that device is out.
Today’s FBI doesn’t like that deal. So it is pointing emphatically and somewhat emotionally to a different statute, the All Writs Act. The FBI says that once law enforcement has a search warrant in its hand, the AWA gives a court basically unlimited power to get anyone to do whatever it wants.
The FBI has been terrific at reading statutes — including CALEA — in ways that require the rest of us to do headstands to understand what the agency is up to. Their claim about CALEA in their latest brief in the Apple case is a shining example of just this kind of breathless, vertiginous, Alice-in-Wonderland assertion: CALEA, they say, limited only law enforcement’s authority to directly require companies to redesign devices and software. But once law enforcement is authorized by a court to do a search — given a search warrant, in other words — then (under the AWA) an FBI official can ask the court to do what law enforcement is prohibited from doing directly under section 1002 of CALEA.
Got it? Right, I don’t either. As the well-respected lawyer Albert Gidari carefully explains in a recent blog post, this is a weirdly circular argument that ignores the specific limitation Congress enacted to remove the government from the business of dictating the design of phones or software. No gaps; no interpretive sunlight: CALEA stops the government from doing what it wants to do to Apple.
So if the FBI wants to change the deal, it has to go back to Congress. But it doesn’t want to, and the DOJ is pushing very hard to get courts to agree with its confabulatory view of the world. Planes will fall from the sky! People will die! Those are the kinds of arguments the FBI and the DOJ are undoubtedly making internally, appealing to everyone’s well-justified fear in a repeated drumbeat of low-voiced indefatigable briefings. Now they’ve chosen their legal vehicle and they’re ginning up public pressure on tech companies. It’s quite a campaign.
I personally have no doubt that the narrow issue under consideration in the Apple case is just the first step of an inexorable, air-of-inevitability push to invest the DOJ with tech design authority.
The president — our Law Professor in Chief — has to know the DOJ is on shaky ground. He’s probably got this rule of statutory construction rolling around in his mind as he watches college basketball this week: Specific statutes trump general ones. Generalia specialibus non derogant.
Nonetheless, the president has chosen his I Get Terrifying Briefings Every Day hat. It’s understandable. Who will blame him for protecting us? He’s worried about something awful happening. It’s just that increasingly hard-to-hear rule of law alarm bell going off again.
Susan Crawford, Backchannel’s tech policy columnist, is a professor at Harvard Law School. In 2009, she served as President Barack Obama’s Special Assistant for Science, Technology, and Innovation Policy.
Photographs via Getty Images.