Observers who watched the Apple versus the Federal Bureau of Investigations (FBI) case with bated breath predicted that the Department of Justice (DOJ) decision to vacate its court order was only the beginning. They were right. A supposed draft of the Burr-Feinstein bill was leaked online yesterday and it has proponents of encryption up in arms.

All Writs Act of 1789 vs. Compliance With Court Orders Act of 2016

On Wednesday, FBI Director James Comey addressed a group of students at Kenyon University and touted the fact that before encryption, there was no place or space that the U.S. Government couldn't access with a court order, but now technology has changed that.

This is due to the nonexistence of a law that forces tech companies to grant the government access to the private data of its users. 

In the bureau's case against Apple, it used the All Writs Act of 1789 to justify its claim. The centuries-old surveillance law grants authorities court mandated power to enter homes and pretty much anyplace they want upon four conditions. The conditions are as follows:

  • The information must be necessary to help law enforcement's case
  • The business in question must be related to the case
  • The request cannot create an "unreasonable burden" to the business
  • The situation has to be extreme enough to warrant law enforcement's interference.

The act is referred to as a catchall, meaning it can only be used if there is no statue or rule already present. 

Apple's claim that writing a new code would jeopardize the San Bernandino shooter's phone and as well as thousands of other American phones is clearly an "unreasonable burden," given the extraordinary circumstance of this case.

Top Videos of the Day

Sayed Farook killed 14 and injured 22 in December of 2015, sparking this legal debate which has been ongoing since January 2016.

Here is where the Burr-Feinstein bill comes in. Since the FBI and the DOJ were unable to compel Apple to comply with its court order, they created a bill that would force technology companies to act on court orders. The bill was written by Senators Richard Burr (D-NC) and Diane Feinstein (D-CA) and is also known as the "Compliance with Court Orders Act of 2016." The bill stipulates that "covered entities must provide intelligible information or data, or appropriate technical assistance to a government pursuant to a court order." This includes the "origin, direction, destination, date, time, duration, termination or status of each communication generated, received, or controlled by a user." Basically, the bill bypasses encryption and gives authorities access to all aspects of call content.

Reaction is swift

The internet and cryptologists were not happy about the proposed bill.

They swiftly took to Twitter to denounce the bill, which they called a "backdoor" to encryption. However, others questioned the validity of the bill draft. 

The suspicion turned out to be valid when Senators Burr and Feinstein issued a joint statement to "Daily Dot" via email. "We're still working on finalizing a discussion draft and as a result can't comment on language in specific versions of the bill," they wrote. "However, the underlying goal is simple: When there's a court order to render technical assistance to law enforcement or provide decrypted information, that court order is carried out. No individual is above the law. We're still in the process of soliciting input from stakeholders and hope to have the final language ready soon."

In any case, round two of Apple versus the FBI has begun.