FBI Dispute with Apple Mirrors a 1977 Case Involving an Illegal Gambling Ring

The law the Federal Bureau of Investigation argues gives it the right to compel Apple Computers to unlock an iPhone has been used by the FBI against other telecommunications company’s before.

In fact, the FBI used the “All Writs Act” in a 1977 illegal gambling ring against New York Telephone. The case, United States v. New York Telephone, eventually went to the US Supreme Court.

The FBI won that case.

1977 Illegal Gaming Ring

At the time, the FBI was trying to bust an illegal gambling ring at 220 E. 14th Street in Manhattan. The feds wanted to track all incoming and outgoing calls, which might allow them to identify the various members of the gambling ring.

Prof. Steven Vladeck of American University told KPBS that the FBI “needed technical assistance from the phone company to actually install the analog 1970s-era equipment.”

New York Telephone’s Side of the Story

New York Telephone, the company approached to help, told the FBI which wires to string up to be able to listen in to the gaming operators. That was not enough for the FBI. The G-Men thought stringing up the cables themselves would tip off the criminals. Instead, they wanted New York Telephone to give them a dual line, which would allow them to listen to conversations more discreetly.

Because they were not a party to the case, New York Telephone felt like they did not need to comply with the request. Furthermore, they thought it would create a bad precedent, because they might be asked by the government to constantly listen in on citizens’ phone conversations, simply due to suspicion.

1977 Supreme Court Decision

In the United States v. New York Telephone, he Supreme Court agreed with the FBI in a 5-4 decision.

The majority opinion on the case read, “We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed. We conclude, however, that the order issued here against respondent was clearly authorized by the All Writs Act and was consistent with the intent of Congress.”

There are major differences in the 1977 case and the current one, though. New York Telephone was a “a highly regulated public utility with a duty to serve the public.”

Prof. Vladeck sees a major difference in the two cases, because Apple is being asked to write code which does not already exist.

Apple v. The FBI

The Apple v. FBI case is likely to get very complicated before a decision is rendered. For instance, Lawyer Joe DeMarco has filed a motion to compel Apple to write the code for the FBI, citing a Connecticut case involving a security guard.

In that case, a fight broke out at a workplace. The police were called and a police officer showed up. When backup did not appear in time, the officer asked a security guard for backup, but the security guard refused. Eventually, the security guard was prosecuted for refusing to help.

Joe DeMarco’s Case

Joe DeMarco says, if citizens can be compelled to help out in a fight, then Apple must comply to write a couple of lines of code for a single smartphone. DeMarco said, “Even innocent bystanders are required to assist the police if the police ask for their help.”

Before that happens, the FBI is looking into alternative ways to break the passcode on the iOS 9 smartphone. If so, then the case with Apple might not proceed and the test case might never happen (in this case).

About the All Writs Act

The All Writs Act is a 227-year old law at the heart of the Apple-FBI case. Critics have called the law archaic, but the FBI is still using it to justify their demands of Apple. The All Writs Act has two components.

One, it says: “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.”

Two, the law states: “An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.”

That is all there is to the law, yet more than two centuries later, it still might apply to 21st century technology. Going to court is a bit like going to war, though: nobody can predict the ultimate outcome. There’s a risk involved, which is why the FBI is still looking for alternatives.