What If Apple and the FBI Went to SCOTUS?
Davis Wright attorneys Robert Corn-Revere and Ronald London recently argued the privacy and First Amendment interests in a "moot Supreme Court" session at the Newseum that sought to approximate appellate review of the issues arising out of the FBI's effort to access the smart phones of the suspects in the San Bernardino shootings.
In the original real-world case, Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, the government obtained an ex parte court order requiring Apple to provide "reasonable technical assistance" to the FBI to overcome security features on the suspects' iPhones that were preventing agents from unlocking them as part of their law enforcement investigation. Before Apple could move to vacate the order, the government moved to compel compliance. The motions were fully briefed, with Apple receiving considerable amicus support from industry and privacy interests. But within weeks of briefing closing – before any decision could issue – the government announced it had found its own way into the phones, and asked the court to vacate the prior order requiring Apple's assistance.
The Newseum knew Americans were interested in both sides of the argument, and thus hosted the mock Supreme Court argument in the matter of "Pear v. US." In response to arguments by Messrs. Corn-Revere and London, the government case was presented by Joseph DeMarco, who served from 1997 to 2007 as an assistant U.S. attorney for the Southern District of New York, and Jeffrey Barnum, a lawyer and legal scholar specializing in criminal law and First Amendment law. Each side presented their cases for 25 minutes and also gave a rebuttal. Read their briefs by clicking on the below links:
The Justices who heard the argument included:
- Floyd Abrams, renowned First Amendment lawyer and author; visiting lecturer at the Yale Law School (representing the chief justice)
- Harvey Rishikof, chair of the American Bar Association Standing Committee on Law and National Security
- Nadine Strossen, former president of the American Civil Liberties Union
- Linda Greenhouse, longtime U.S. Supreme Court correspondent for The New York Times
- Lee Levine, renowned media lawyer
- Stewart Baker, former assistant secretary for policy at the U.S. Department of Homeland Security
- Stephen Vladeck, professor of law at American University Washington College of Law
- The Hon. Robert S. Lasnik, senior judge for the Western District of Washington at the U.S. District Court
The video of the argument is available here: https://youtu.be/_hbu4Sjl5p0
After the argument, the audience voted both online and in person on which issue would most likely be decisional were such a case presented to the Supreme Court. The results were split. According to the Newseum 25 percent of those who responded said the central issue likely will be whether the All Writs Act can be invoked to empower the government to obtain such a court order. The next most-likely issue was protection of the privacy of individual customers who have stored personal information on such phones. The third-ranking issue was national security.