On Setting Precedents in the Apple-FBI Dispute

By Herb Lin
Sunday, February 28, 2016, 3:09 PM

In a recent February 25 hearing of the House Select Committee on Intelligence, FBI Director Comey said two things.

At 36:45 in the CSPAN video, he says that

I do think it [the outcome of Apple’s appeal of the magistrate’s order] is potentially instructive for other courts, and there well may be other cases that involve the same kind of phone and the same operating system… The combination of the 5c and this particular operating system is sufficiently unusual that is unlikely to be a trailblazer because of [the specific] technology, … but decisions by judges . . . will guide how other courts will handle similar requests. . . How judges interpret [the All Writs act] in any particular jurisdiction, it’s not binding on others but will be important.

At 50:33 in the CSPAN video, he says

The San Bernadino litigation is not about us … trying to establish some precedent. It is about us trying to be competent in … an active investigation, but I don’t know how lawyers and judges will think about what is the limiting principle [where “limiting principle” needs to be understood as the principle that would constrain the scope of how any precedent might be applied].

I think these two statements state quite clearly how the FBI is thinking about the extent to which its case against Apple may have value as precedent. Both statements appear to me to be true, and they are not contradictory, though one has to parse them very carefully to reconcile them.

I do believe that the FBI is both right and obligated to pursue every investigatory lead in hand, as long as that pursuit is within the scope of the law. And as long as the law exists, judges have to decide what that scope is. The San Bernadino shootings were heinous, and it would be terrible if the FBI decided not to explore some relevant investigatory angle if it had the legal authority to do so. (There’s a resource question embedded here that I’m ignoring for now.)

That said, the FBI is clearly aware that other judges, considering other cases, may look to the legal reasoning in this case, however it is decided, to help shape their own thinking on those other cases. That is not the intent of the FBI in pursuing its litigation against Apple, but it’s a known, anticipated, and expected outcome just the same.

If I take action to accomplish X, and in the course of acting, Y also happens, and I knew Y would happen if I took I tried to accomplish X, does that mean I intended Y to happen? That’s absurd as a general proposition. People take medication all the time with known side effects. Does that mean they *wanted* those side effects? No. It means they wanted the benefits afforded by the medication, and were willing to accept those side effects.

Someone will point out here that side effects are usually negative. But the argument doesn’t really change when the side effects are positive either—it still remains true that one can take the medication for its intended benefit and enjoy the side effects as an added bonus.

And, we also don’t know the ultimate outcome of the litigation against Apple. The FBI could win or lose this case – and those who say the FBI is trying to set a precedent are forgetting that the FBI’s ability to use the All Writs Act could well be set back by a decision that favored Apple. Apple supporters who fear the precedent-setting nature of this case are essentially saying they expect Apple to lose in court, or in other words, that Apple has a weak legal position in this instance.