Litigation Update: The Government, Apple, and the Encryption Debate

Listen & Download

In 2016 the United States Department of Justice and Apple twice went to federal court over whether Apple could be required to assist the government in unlocking cell phones used by persons under investigation for criminal conduct.  One case involved access to an iPhone used by one of the persons responsible for the mass shootings in San Bernardino, California.  Another case involved an iPhone seized from a narcotics trafficking suspect in Brooklyn, New York.  In both cases, however, the litigations were terminated as moot without final resolution when the government was able to access the iPhones in question without Apple’s assistance.  Once again, however, the government and Apple are at odds — this time over access to iPhones used by a Saudi military trainee who in 2019 killed three sailors at a Navy base in Pensacola, Florida.  What is the basis for compelling a third party to assist the government in its criminal investigations in accessing encrypted communications using its platforms?  What are the key legal and policy issues at stake in this controversy?  Joseph V. DeMarco of DeVore & DeMarco LLP, who filed amicus briefs in the 2016 litigations on behalf of various law enforcement organizations in support of the government, and who previously prosecuted cybercrime as an Assistant United States Attorney in the Southern District of New York, will explore these issues and offer perspectives on the implications of this crucial debate for national security as well as for criminal and civil litigations in state and federal court.

Featuring: 

Joseph V. DeMarco, Partner, DeVore & DeMarco LLP

 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International & National Security Law Practice Group, was recorded on Wednesday, February 5, 2020, during a live teleforum conference call held exclusively for Federalist Society members. 

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled, "A Litigation Update on The Government, Apple, and the Encryption Debate." My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Joseph DeMarco, who is a Partner at DeVore & DeMarco. After our speaker gives his opening remarks, we will then go to audience Q&A.

 

Thank you for sharing with us today. Joseph, the floor is yours.

 

Joseph V. DeMarco:  Thank you very much, Mr. Wallen, and thank you to The Federalist Society for making this teleforum possible.

 

      One of the issues that has come to the floor once again is the issue of whether and under what circumstances the government should be able in the course of a criminal investigation to access encrypted communications by a subject that is under investigation where those encryption technologies are facilitated and used by third party actors who, in some cases, create the platforms.

 

      What I'd like to do over the next 25 to 30 minutes is spend a little bit of time, starting with my background, on three of the cases that have most pointedly raised this question: one which got a lot of publicity, one which got a little bit less publicity, and then the most recent case. All three involve criminal investigations conducted by the government.

 

      I'd like to talk a little bit about, really, the main Supreme Court case in this area, which is old but not too old, New York Telephone. And then tee up what I think are some of the most interesting and analytically curious issues that come out of this debate. It's naturally a debate and a discussion which involves issues of data privacy and data security and how and under what circumstances law enforcement and the government should have access to communication technologies that rely or depend upon encryption in large or small measure.

 

      How did I come to this issue? Well, by way of background, for about 10 years from 1997 to 2007, I was an assistant United States attorney in the Southern District of New York. And I focused exclusively on cyber crime investigations. And if you think back to that period of time from 1997 until 2007, it really covers the arc of the modern internet and modern e-commerce biosphere as we know it from when email was just really getting going to the social media revolution that occurred at the beginning of this century. With that growth in technology, obviously communication platforms grew, and along the way, encryption technologies grew as well.

 

      In 2007, I started my present law firm, my current law firm, and the full time focus of our law practice is the law of data privacy and security and cybercrime prevention response. I'm no longer in law enforcement. I help companies and organizations figure out these issues. But increasingly, in the issues that I face as a litigator, we are bumping up against encryption technologies that impact how we conduct our litigation, how we conduct our investigations.

 

      As was mentioned in the email notice that went out, my firm filed on behalf of several retained clients amicus, “friend of the court,” briefs in two of the cases I'm going to be speaking about today, which went to litigation, and we'll talk about that, and I gained some additional insights along the way.

 

      So with that background in mind, what I'd like to do is spend a little bit of time talking about, really, the first case that brought this issue to the national consciousness. And that was a case arising out of a terrorist incident that occurred on December 22nd of 2015 in San Bernardino, California.

 

On that day, an individual named Syed Farook and his wife went into a community center which provided services to people with disabilities. A holiday part was just wrapping up, and they began opening fire. In the end, 14 people were dead, 22 were injured, and Farook and his wife fled. Ultimately, they were apprehended by police and killed in a shootout with police.

 

      Following the conclusion of that shooting, law enforcement authorities recovered at least one iPhone belonging to the couple, and they obtained a search warrant from the United States District Court in the Central District of California for permission to search that iPhone. They also obtained the consent to the search of the entity that owned the phone. The phone in question was actually owned by the County of San Bernardino, which consented to the search.

 

      When they went to execute that search, however, they found that the iPhone that Farook was using had been upgraded to a version of Apple's iOS operating system, which was an iOS 8, I believe at that point, which precluded their ability to get into the phone. The way that Apple had configured, and to a large degree continues to configure, its operating system involves application of encryption technologies at the device level.

 

      What that meant was that even though the government had a lawfully issued search warrant to search the phone, because Farook was no longer there to give them the passcode, they were simply, effectively unable to access the phone. The phone's technology made it impossible for them to guess quickly. After a certain number of guesses, the phone would be permanently disabled.

 

      And so what they did was they went back to court, and they went to the magistrate judge and they asked for a supplemental order. The supplemental order that they asked for was an order under the All Writs Act, which would compel Apple to provide them with technical assistance to get into the phone. In effect, the order they asked for, and ultimately got, directed Apple to do a number of things.

 

      It directed Apple to disable the auto delete feature so that after 10 guesses, the phone would not be turned into a brick. And it also directed Apple to disable the feature which prevented guesses on a rapidly sequential basis. What this would mean is that the government would have the ability to try and continue to guess using machine learning in order to get into the phone. The order also directed Apple to provide additional technical assistance.

 

      Apple objected to the order, and it objected to the order on the grounds that doing what was necessary technologically to get into the phone would essentially involve, in a way, in crude terms, jailbreaking the phone. And the only way for Apple to do that would be to write code which would defeat the encryption. And if that code got out into the wild, it would defeat the encryption technologies or could defeat the encryption technologies on everyone's phone.

     

      They also argue that the court's order was burdensome, and they ordered that it was antithetical to their understanding of security and was bad for customers and bad for the company. Ultimately, however, as the issue was being fought out in the district court, the issue was ultimately and suddenly made moot when on March 21, the government announced that it had found an alternate way into the iPhone in question. And, therefore, it did not need the court's supplemental authority to order Apple to assist it in the way it had originally asked.

 

      Press speculation bounded as to how the government got in, and it ranged from the hiring of an Israeli security company to the hiring of hackers, who were paid substantial amounts of money, but the issue effectively was moot. Moot before there was a trial on the issue, moot before live witnesses were called, and I think that's part of one of the reasons why this debate is as difficult as it is, even today, several years later.

 

      Now, by way of background, for those of you that are not familiar with the All Writs Act, the All Writs Act was passed in 1789 and amended only once. In its current incarnation, the All Writs Act says the following -- it's one sentence long. It provides that “the Supreme Court and all courts established by acts of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” And it's found at Title 28 United States Code Section 1651.

 

      In some respects, it's like a helper statute. It's a statute which empowers courts without the need of any formal specific named writs to exercise authority to aid its jurisdiction. And the theory in the San Bernardino case was that having obtained a search warrant from a neutral and detached magistrate, the government needed something else, an All Writs Act order, to compel Apple which was refusing to help it in order to enforce the underlying search warrant order, the authority to search that it had.

 

      Now, the San Bernardino case got a great deal of attention at the time. A number of amici filed briefs in the court, there were a couple in support of the government and a couple dozen in support of Apple. We were retained by three organizations to file an amicus brief in support of the government's position. Those three organizations were the Federal Law Enforcement Officers Association – FLEOA, the Association of Prosecuting Attorneys, and the National Sheriff's Association. We filed their briefs publicly, and shortly thereafter, the issue was moot.

 

      Another case, though, soon quickly bubbled up to the surface, and it got some press attention but not quite as much as the San Bernardino case. That case was a case that arose from a criminal investigation in Brooklyn of a suspect who the government believed was involved in the distribution of methamphetamine and was part of a methamphetamine distribution ring.

 

Now, in that case, the iPhone in question was running iOS 7. It was not running iOS 8, and I think by now, we're on 10, 11, or 12. But it was running an operating system which did not have this unique aspect to where, again, the encryption was on the phone and only the user of the phone had the ability to trigger the decryption. This was running iOS 7, and in that litigation, the government was in the process of working through with Apple what exactly the way in which Apple is going to help them was going to be in terms of getting into the phone.

 

      Interestingly, in that case, perhaps as a result of some of the publicity in the San Bernardino case, the magistrate judge, Magistrate Judge Orenstein, asked Apple, sua sponte, about the applicability of the All Writs Act. Upon being asked about the applicability of the All Writs Act and how and whether or not the All Writs Act could be used to compel Apple to assist the government, Apple objected. And the court, the magistrate court that is, issued a ruling on February 29 of 2016 siding with Apple.

 

      That issue was appealed to the district court. Again, magistrate orders are typically appealed to the United States district court, and as that appeal was taken to district court, we filed an amicus brief in support of the government. In this amicus brief, we were retained again by FLEOA, by the APA, the American Prosecutor's Association, and by the Association of District Attorneys of New York State. So New York State district attorneys have an association, and they have this group, and we filed an amicus brief on their behalf in this one.

 

      There, too, interestingly enough, before there was any hearing or any substantial evidence taken in the district court or the district court's initial appellate review on April 22 of 2016, the issue was made moot again when the government filed notice with the court indicating to the court that an individual who knew the passcode had provided the passcode. And so the government was able to get in. It was able to effectuate its search of the phone, and an All Writs Act order was not needed.

 

      Things were kind of quiet until then. Periodically, there'd be debate in the public and legal press as to when and under what circumstances this issue would arise again. I think everyone figured it would arise again because it would only be a question of time before, again, the government and law enforcement would want to get into a phone and would not be able to. And I'm focusing on the iPhones in question because those were the devices in question. We'll broaden it out in a little bit to other devices and other communication platforms. But I think it's helpful to understand the factual context of the dispute so far.

 

      For those of you who may remember, on December 6 of 2019, Mohammed Saeed Alshamrani walked into what was present at a naval station in Pensacola, Florida. And he was a Saudi military trainee, and without any warning, he opened fire, killing three people and injuring six. He was killed shortly thereafter by sheriff's deputies. According to press reports, before being killed, he was carrying two iPhones, and he put one of them down on the ground and put a bullet into the phone before he himself was killed.

 

      The phones were recovered and a couple of weeks ago, the attorney general announced that in connection with classifying the incident as a domestic terrorist incident, the devices had been recovered and they were able to be made operational again by the government. Operational, however, because the phones were running an iOS 8 or later operating system on them, without Apple's assistance, they could not be accessed.

 

And the attorney general called upon Apple to assist the government in opening those phones. I don't believe there's been any publicly filed litigation, at least not that I'm aware of as I sit here today on the matter. But it, again, rose the question of whether and under what circumstances law enforcement should have applicability to and access to encrypted platforms.

 

      Now, some of you might wonder, well, is this just a totally new issue that's come up only because of the existence of these relatively new communications platforms and the fact that by default, many of us are walking around on our devices with military grade encryption at the device level. But if you really look back to some of the case law, it's not been the first time that technology has come before the courts and posed a question of whether and under what circumstances third parties should be assisted -- should assist the government in its investigations.

 

      And the seminal in this area is New York Telephone, United States v. New York Telephone, which is a case that came out of the 1950s, and it involved the telephone. In that case, there was an illegal gambling ring that was conducting its criminal business on the lower eastside of Manhattan out of apartments located at 220 East 14th Street. And the FBI got court authorization to install pen registers. Pen registers are devices which record numbers that are called from telephones, and they can be very, very useful in identifying the associates, perhaps, or even the customers, the gamblers, of a gambling ring.

 

      They got the order from the district court, and then they went to New York Telephone with another order directing them, New York Telephone, to provide the government with all information, facilities, and technical assistance needed to employ the pen trap devices. Litigation ensued in the district court. It went up to the Second Circuit, and relevant to our topic of today, the question -- or one of the questions before the court was whether and to what extent the All Writs Act could be used and relied upon by the government to order and compel New York Telephone to provide the government with the assistance.

 

      And just so you understand what the assistance was, in the New York Telephone case, the assistance related to making telephone lines -- again, this is in the olden days of copper lines with little alligator clips and wire taps being done through people and in vans listening on earphones to what comes through those alligator clips. Now, this was not a wiretap case, it was a pen register case. The technical assistance that the phone company was asked to provide was access to telephone lines not near the building at which the government could install the pen trap device.

 

      If the government had installed and they had surveilled the apartment buildings and the surrounding areas, according to the government, at least per the trial record or the court record, had the government tried to go up on telephone poles and install the pen trap devices in close proximity to the apartments in question, they would have been noticed and, of course, their concern would have been that the illegal gambling ring would move elsewhere. 

     

      New York Telephone objected. They objected on a number of grounds. The chief ground was that it was burdensome and that they did not want to be involved in it. They wanted a court order to clarify what their obligations were. The Supreme Court, in its majority opinion, laid out a multiprong test in ruling for the government.

 

First, the Court noted, the telephone company was not so far removed from the underlying issues, the underlying controversy, and the underlying orders, it was not so far removed that it could be said to be unfairly imposed upon. Or put another way, I suppose, for you civil litigators, there was a proximate relationship. In other words, telephones were being used as an integral part of this particular gambling ring.

 

The government had proven that a pen register to record the numbers associated with the telephone operators of this gambling ring was necessary. And the phone company was the only thing standing in the way of the government and its ability to affect that order. So there was some proximate relationship between the two, enough, at least, to make it fair for the telephone company to be imposed upon in this way.

 

Secondly, the Court looked at the necessity. How necessary was it for the government to ask New York Telephone to help it? And, again, there too, for the reasons I mentioned, the Court found that it was necessary for the phone company to help it because without the phone company's help, there was no way for the government to put the pen register technologies and deploy them onto the phone lines in question.

 

A third factor the Court looked at was the burden on New York Telephone. And there, the Court found that New York Telephone had the ability to provide these lines and assist the government technically in the ways that the government requested and that for its own anti-fraud and business purposes, it regularly applied the same type of assistance, again, internally for its own business reasons, that it was going to be asked to provide to the government.

 

And finally, the Court noted that the company as a regulated utility was part of the ecosystem and had a duty to assist the government. And it was not unfair to ask them as a regulated utility with a duty to assist the government and aims and objectives not inimical to the government to assist the government.

 

Now, I'm not going to go through all of the subsequent AWA cases or the other AWA cases. There are only about a relatively small number of them, a few dozen of them. But let me just say then and point out that as a general matter, the All Writs Act has been used a number of times by the government in criminal cases, in civil cases as well, and by civil litigants, in order to get a court to order a third party to do something to help the court in resolving the underlying controversy before the court to help the court exercise its jurisdiction so that it could get effect to its prior or underlying orders.

 

And the cases range the gamut from cases where the AWA, All Writs Act, was used to compel the production of a prisoner so that they could be present at the Section 2255 habeas petition or compel the production of discovery relevant to a habeas petition. There are a range of cases, and again, they're used in civil litigations by civil litigants as well, again, typically directed to third parties to help them get to do something.

 

So why does this debate matter? Why does it matter beyond the narrow confines of the devices in question in the litigations I've mentioned? Well, it matters for a number of reasons. First, of course, there is an issue of statutory interpretation. What is it exactly that the All Writs Act means? And how can it be applied, a 1789 law, be applied to today?

 

Secondly, how do we apply the existing body of case law that comes out of the All Writs Act, which in some cases involve technology, not often, but in some cases involves technology to third party running of platforms, like iPhones, Android devices, as well as other encrypted platforms like communication apps, which often deploy and employ end-to-end encryption where the only password is known by the person using the app. And it's sometimes deployed on the device level. How do we understand the All Writs Act as applied to that very dynamic complex ecosystem that we live in that we call the modern internet age?

 

The third question, which I think is also interesting, is just what is the role of the courts? What is the role of government? And what are the roles of litigants to compel third parties to provide this assistance? What is the role of the public in assisting law enforcement in this area?

 

I think these are all the issues that are going to be hashed out by the courts over the coming months and years. And they're going to actually require a very keen understanding of the technologies at issue, the relative arguments and rights of the parties on each side to the controversy to the issue And I think that as long as we have technology moving at the speed of sound to address these issues and as long as we have communication platforms proliferating the way they're proliferating --

 

Some of you may recall Justice Roberts' notation in one of the recent cell phone cases where he noted that according to public surveys, some non-immaterial percentage of the population brings their cell phones into the showers. But how do we deal with this issue as it relates to communication methodologies that we haven't even yet thought of?

 

And, again, it's a fascinating issue. The issues are complex. They're hard. They're fact specific. And I think one of the reasons why perhaps they are as hard as they are is that, again, today, at least in the modern context, we've not had merits trials. We've not had the kind of detailed findings of facts in conclusions of law. In the two most prominent cases, the two that we were involved in, the issue was mooted before the courts really had a chance to rule. And they were -- to the extent they were ruling, ruling on the basis of really more lawyer arguments and proffers and assertions than testimony that had been tested by cross examination on the stand.

 

So I think those are some of the issues in play. Those are the three seminal cases. I don't have any predictions as to how the Pensacola case will go. Some of you may wonder well, why can't the government get information from the cloud? The short answer is not everyone backs up their device to the cloud. And sometimes, the most interesting evidence is what's not backed up and not on some other platform, like Gmail, let's say. And those can oftentimes include text messages and photos.

 

But let me pause there and open it up for questions. And once again, thanks to The Federalist Society for allowing me to spend this time with you.

 

Micah Wallen:  I have two questions popping in the lines already, so without further ado, we'll move to our first caller.

 

Caller 1:  Hey, good afternoon. Just curious if there's any possibility for arguing under the All Writs Act that the government exhaust its own resources before imposing on a private company like Apple. It seems to me that the government is at least as connected to this issue through NSA and other spying tools it's developed, and it has capacity.

 

Whereas Apple isn't necessarily in the hacking business. They're in the manufacturing business and, to a certain extent, the software implementation business. They aren't in the business of hacking encrypted devices, at least that I know of. But the United States government is. So it seems to me like if you were going for an All Writs Act, the connected party would've been something like the NSA or one of the United States government entities that has the mission of actually doing that work.

 

Joseph V. DeMarco:  Sure. So it's a good question and one that a number of people have asked before. And it is relevant to this extent: to the extent that courts will look to the necessity. How necessary is it to have the third party do whatever it is? Part and parcel of that inquiry is well, does the government really need that third party to do what it does? Can the government do it on its own or some other way?

 

      What we know is that in all three cases that I mentioned, the New York -- I'm sorry, the San Bernardino case, the Brooklyn case, and the Pensacola shooting case, in all three cases -- and the Attorney General Barr was just asked this just two weeks ago in the Pensacola case. At the time the government made the assertions that it did not have the ability, those were the assertions it made.

 

      I think it's also relevant to understand that these were criminal cases, criminal investigations. They were not national security investigations. They were criminal investigations which lead to criminal cases, and the orders obtained were obtained as part of criminal process. In other words, the underlying orders in the Brooklyn case and in the San Bernardino case were search warrants issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure.

 

      So the All Writs Act issue was directly linked in those cases to the underlying criminal process, and they were criminal cases. Again, the government made representations which were credited by the court that it did not have a way into the phone. In the San Bernardino case, there were reports that it went outside the government, went to a third party to get into the phone.

 

      So I think your question is a good one because it gets to the necessity prong, and, again, had the matters gone further, we might've had actual probing on just what the government was capable of. And if the government at a certain point was not willing to disclose that, but it did have the capability, then it presumably would've withdrawn the order.

 

      But to answer your question, it goes to the necessity prong of the New York Telephone case.

 

Caller 1:  Can I just follow up on that? Because if we're going to the necessity prong, isn't there another prong about capability as well? So maybe the All Writs Act doesn't apply to Apple because they don't have a hacking division at Apple, maybe it goes to one of these other saddle companies like Palantir or something like that that actually do have contracts with the federal government to hack encryption. Just isn't clear to me why Apple was the immediate target.

 

Joseph V. DeMarco:  I don't know, is the short answer. But I think to your question, I think the question you just posed is a question that a judge could ask, could validly ask, which is okay, government, do you really -- okay, you've proven to me that you can't do this yourself. But what I want to know is have you gone to the market? I think that's a legitimate question.

 

      By the way, let me just add one other point. We focus on the government. We focus on the NSA. The vast majority of crimes in this country, of course, are investigated and prosecuted by state DAs. And the New York State district attorneys don't have an NSA, right? And oftentimes, and my guess is, most of the time, they don't have access to anything approaching NSA-like technologies. And my guess is the NSA is not going to give them their technologies.

 

      So even if you could solve this issue for federal investigations in those relatively small number of cases that are federal, as opposed to state, because the federal government has the internal technical expertise or the budget to go outside, you're not going to be solving this issue. It's still going to be an issue that's ripe and live in state court litigations across the country.

 

Micah Wallen:  Without further ado, we'll move onto the next caller.

 

Clark Neily:  Well, this has been a fascinating conversation. Thanks so much. This is Clark Neily from the Cato Institute. Obviously, these technological issues often end up as a kind of an arms race. And it seems to me the rather obvious defeat approach or technology would be to have an app on the phone that would essentially initiate an erasing of the data, like BleachBit or something, unless a passcode is received. And you could set it to prompt you every hour, every day, whatever it might be, so that if the phone is not told to halt the data erasing initiation of that process, that it goes ahead and does it.

 

      So it's a default that your phone will erase itself every day unless it receives this code to halt that process. Would the government's position in this case, with a logical extension implied, that maybe the government could go and get an order from a court that people not be permitted to install such an app on their phone? What do you think about that?

 

Joseph V. DeMarco:  This is a great question. I don't know the answer to that. Again, in the cases that have come up so far, the cases have not been either mandating the application of technology on a person-by-person basis nor prohibiting the application of a technology on a person-by-person basis. And I think, again, just by reading their briefs -- and I don't speak for the government, I just speak for myself only on this, but from reading their briefs, the government, in the cases I referred to earlier that we were involved in, was careful to note that it was really not interested in mandating the deployment of certain technologies versus others.

 

      So I don't know, though, that would implicate the All Writs Act in any other way. I think what you're really asking is could there be legislation that did that? Because, again, the All Writs Act in these cases typically is supporting a search warrant, which is particularized to a person or a device or specified individual devices that are already under investigation, if that makes sense. But it's a great question.

 

Micah Wallen:  Joseph, I did have a question to ask you. I was wondering how you thought that technological developments in communications platforms and biometrics are going to come into play in this debate.

 

Joseph V. DeMarco:  It's an interesting question because, of course, the issue that we've been talking about is passcodes. And for a lot of users of these devices, or other encryption technologies, they're not using passcodes anymore. They're using thumbprints or fingerprints or facial recognition. I think the number of people that are still using passcodes on their iPhones that have iPhones that are capable of reading either fingerprints or recognizing their faces is something like 10 percent.

 

      So it's a relatively small number of people that are still using passcodes. And what's interesting is that, again, from a legal point of view from a criminal procedure point of view, there's an abundance of case law which suggest that giving over a passcode is testimonial in nature, so it's not really possible in most jurisdictions for you -- the government to compel someone to tell the government your passcode because that's testimonial and implicates, obviously, constitutional rights.

 

      On the other hand, if you posit the use case of someone having an iPhone or an i-device, and all they do is power it up and put it so that it's facing the person's face, well, then it's unlocked right there. So I think that in some respects, as we move from numbered passcodes to biometrics, in some cases, the issue will be mooted. Because, again, a person does not have a right, generally speaking, not to have an iPhone or other device shown to them, and fingerprints can be subpoenaed. You don't need a search warrant for fingerprints.

 

      So I think we have to obviously bear in mind how quickly technology's moving. Now, that won't solve the case completely. It won't resolve the issue completely because many devices still will use authentication features that people know and, otherwise, would have to be forced to speak. But I do think you have to watch technology as well as watch the law in this area.

 

Micah Wallen:  All right. No other questions in the queue. Joseph, did you have any closing remarks for us today?

 

Joseph V. DeMarco:  The only thing I would say in closing is I would commend people to continue to watch this issue. Think about how encryption effects their lives. Think about how this issue can come up in civil cases as well. I don't know if there are many civil litigators on the line, but undoubtedly, there will be cases coming down the pike where, for example, person A is suing person B and wants data from person B's device, and person B is either gone or unwilling to give it up or can't be compelled to give it up. But the reason why A wants information from B's phone is to potentially bring a lawsuit against C, D, or E.

 

      And that lawsuit could involve civil rights claims. It could involve discrimination claims. It could be breach of contract claims. But my prediction is that this issue will not only bubble up again on the criminal side and the law enforcement side, but it will bubble up again in civil litigation. And to me, that's kind of an interesting thing that no one's really talking about, but I would commend the civil litigators on the line to watch that issue as well.

 

Micah Wallen:  All right. Caller, as soon as you hear the prompt, go ahead and ask your question.

 

Caller 3:  Yes, hi. Thank you so much for doing this. It's been a really informative presentation. The question I had was it seems from news reports that the government has been a lot more active recently from a policy perspective in relitigating this debate. Yet, we've still seen the response from industry and tech and privacy community being very opposed to it, and everybody seems to be talking past each other. Do you have a sense of how the debate could be more productive, more of a conversation where we might go from here to actually get a solution? Maybe not courtroom, but actually as a matter of public policy.

 

Joseph V. DeMarco:  Yeah. Ideally, it should be that conversation. I'm a lawyer, not a legislator. But I do think that there is room, lots of room, for productive conversations in the issue, and I don't know whether that's something like a blue-ribbon panel or legislative hearings and fact-finding commissions. But it should be the case that we can do better than we're doing now. And ideally, it does get resolved in a way that gives enough comfort to all parties that crime will be pursued and solved and that encryption technologies will remain secure. I wish I had the answer, but I do predict that until we find that answer, there will ultimately be more courts that are called upon to resolve these issues.

 

Micah Wallen:  All right, and on behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.