March 2016 | by Michael Coyne
Michael L. Coyne, Dean & Professor of Law, Massachusetts School of Law
The government, in coast to coast cases, is attempting to use the All Writs Act—an obscure catch-all statute that dates back to the 18th Century—to force Apple to provide the necessary decryption keys to unlock IPhones. These cases will resolve the issue of how much authority the AWA gives the government to force third parties to assist the government. While discussing whether Apple should be compelled to build the decryption key and unlock the San Bernardino terrorist’s IPhone with Bradley Jay on WBZ radio, a number of callers asked the fundamental question: Do you trust the government?
Do you trust the government? How do you answer that question without feeling either too naïve or too cynical? It seems unpatriotic to question the bona fides of our government while we are at war with terrorists. Coldly confronted with the issue, it is extraordinarily hard to side with the potential privacy rights of terrorists. None of us wants to do that. Nor is it easy for many of us to answer in the affirmative and admit what some see clearly as the hard-earned truth. Our government has let us down too many times to trust them with such a weapon. It is a weapon that could then be used against its own citizens in far more mundane matters, or be used as barter with a foreign government du jour, or fall into the enemies’ hands through incompetence.
We baby boomers are products of the misinformation wars of Vietnam and Iraq with Agent Orange and WMD. Those wars gave birth to other government breakdowns: Watergate, Iran Contra and Abu Ghraib.
In Boston, we discovered too many years later that our FBI was in bed with Whitey Bulger’s gang of murderers and drug dealers who poisoned their own community. When the victims of those crimes demanded the FBI account for its misdeeds, government officials, lawyers, and the courts denied them justice. They continue to do so. Our own church, government officials and the press sacrificed generations of children through their indifference and silence despite knowledge of unfathomable sins.
Is trust for those we should be able to trust in short supply? Has our faith that those charged with doing the right thing, will do the right thing, too often been misplaced and abused? As the New York court noted in dealing with these issues concerning unlocking a drug dealer’s IPhone, “ given the government’s boundless interpretation of the All Writs Act, it is hard to conceive of any limits on the orders the government could obtain in the future. For example, if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user? “
There can be little doubt that if our trust has been tested to its limits, it was by individuals, not the government or honored institutions. However, is it not always individuals who will be acting on their behalf? If every country has the government it deserves, are we deserving of more or should we simply trust once again?
I want to fight terrorism. I really want to trust.