Code Speak: Constitutional Avoidance on the First Amendment Encryption Question
Volume 90, No. 2, Spring 2018
By Brandon Matsnev [PDF]

After the mass shooting in San Bernardino, California, the FBI recovered the suspect’s iPhone and hoped to glean information from it regarding the attack, including possible associates or co-conspirators. Due to the iPhone’s advanced security features, however, it took months for the FBI to access the phone’s data. The primary reason was encryption—a function that scrambles a user’s data, making it unreadable. The Federal Government, unable to break the encryption on its own, requested a court order forcing Apple to rewrite its software to eliminate the security features on this specific phone. The court order was granted. In its challenge to the order, Apple argued that being forced to write code was a violation of its First Amendment right to free speech. While the nation prepared for a titanic legal battle, the FBI paid an unknown entity almost $1 million to break into the iPhone and withdrew its request to the court. While one battle was never waged, the war between law enforcement and technology companies is escalating.

The converging issues of law enforcement, compelled computer code, and free speech are bound to come up again. If these issues clash in federal litigation, a court should resolve them through the doctrine of constitutional avoidance, whereby a court steers clear of adjudicating a constitutional matter when a plausible statutory interpretation exists. The All Writs Act provides the statutory escape hatch for purposes of the constitutional avoidance doctrine. Where law enforcement seeks to force a technology company to draft code to circumvent encryption, a court should rule in favor of the technology company by interpreting the All Writs Act in a way that forbids this. Doing so will prevent judicial entanglement in a national debate that should be resolved legislatively. Ultimately, Congress should enact a new federal statutory regime that will balance privacy concerns on the one hand with national security and criminal justice concerns on the other.

Brandon Matsnev is a J.D. Candidate at Temple University Beasley School of Law, Class of 2018.