1

The Defense Production Act reads in part:

The President is authorized (1) to require that performance under contracts or orders (other than contracts of employment) which he deems necessary or appropriate to promote the national defense shall take priority over performance under any other contract or order, and, for the purpose of assuring such priority, to require acceptance and performance of such contracts or orders in preference to other contracts or orders by any person he finds to be capable of their performance

Could the president order Apple to provide the service of unlocking a phone under this act?

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    What defense contract does Apple have which is relevant here? That act looks like it is basically saying "if the Army ordered 1,000 trucks from you, the President can make you build those before you build pickups for the civilian market." – cpast Feb 22 '16 at 19:10
  • @cpast the president can also require them to accept the contract for 1000 trucks, not just fill such an order first. So I'm asking if the president could similarly require Apple to provide software to unlock/decrypt a phone. Compare to what was done in 2011 :business.financialpost.com/fp-tech-desk/… – DavePhD Feb 22 '16 at 19:22
  • @DavePhD This statute and certainly not the cited language authorizes the President to require them to accept the contract for 1000 trucks (at least not on any terms different than those offered to the civilian market). You are misunderstanding the language of the statute. Answering questions in a classified investigation about interactions with a foreign power is not the same as redoing software at the instruction of the government. – ohwilleke Mar 20 '17 at 23:03
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Regardless of what the USA wants, Apple can't just unlock encrypted IPhones. Encrypted IPhones are only decryptable by whomever has the password (or can guess the password.)

Apple would have to preemptively change their crypto in order to facilitate such order.

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    What the FBI wanted Apple to do, was to provide firmware that wouldn't lock the phone after 10 tries, and that could try programmatically (rather than having to type the password by hand). It was common ground between the parties that doing so was technically feasible. – Martin Bonner Feb 20 '17 at 13:04
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The president would have the minor problem to say with a straight face that such an order would be "necessary or appropriate to promote the national defence".

For example, the ex-NSA chief Michael Hayden has said that overall secure end-to-end encryption is a huge benefit to national security.

PS. Due to recent events: Apple's main argument to refuse handing the FBI the ability to unlock iPhones was that they feared such an ability could find its way into the wrong hands, while the FBI would swear that this would be absolutely impossible. But now hacks developed by the NSA have found their way into the wild and might become available to any criminal with enough money to pay for them, and of course to any nation with enough money to pay for them. So Apple's argument has suddenly become a lot, lot stronger.

1

No.

In the context of the cited language, the word "order" is not being used in the context of a military style command, instead it is being used in the context of a purchase order for goods or services (or a contract) that has already been voluntarily entered into by the parties. The overall context is a statute about military procurement of goods and services, not about deputizing civilians to act as involuntary federal investigators. This is about how already existing defense contracts are to be performed by defense contractors, not about anything more profound than that.

It is saying, for example, that if the Air Force purchases 100 iPhones from Apple that the President can insist that it fulfill the Air Force's order of 100 iPhones before it fulfills any other customer's orders (even if they pay a rush fee or are related to the CEO or something).

The cited language does not confer upon the President a general authority to make anyone do whatever he tells them to do for national security purposes. As such, this statute does not authorize the President to tell Apple to decrypt a phone even though there may be some other statute, completely unrelated to this one, that does authorize the President to do that under some very different circumstances. I won't venture to have comprehensive knowledge of all U.S. laws on national security, but the one quoted doesn't get the job done.

  • You aren't addressing the "require acceptance and performance of such contracts" aspect of the statute. – DavePhD Mar 22 '17 at 2:06
  • "acceptance and performance" is related to "in preference to other . . . " language. This means that the President can't demand that Apple offer for sale something that it isn't offering to others for sale. – ohwilleke Mar 22 '17 at 15:43
  • The language "by any person he finds to be capable of their performance" means that the president can demand anything he finds the person or company capable of producing. It doesn't matter if the person or company has ever done it or offered to do it before. – DavePhD Mar 22 '17 at 15:56
  • See for example Hercules Inc. et al. v. United States (94-818), 516 U.S. 417 (1996) "the Government, by exercising special statutory authority, required the companies to enter into the Agent Orange production contracts over the explicit objection of at least one of the companies" law.cornell.edu/supct/html/94-818.ZD.html Agent Orange wasn't something the company was selling to other customers, but the Defense Production Act was used to force the company to produce Agent Orange. – DavePhD Mar 22 '17 at 16:10
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It should not really matter who is compelling Apple to take certain action, as long as request has legal basis and is within the constitution. There is already a court order, however if the request is unconstitutional, then having the President repeating it does not change the validity since he is not above the law.

This will go several appeals to higher courts and may eventually end up in the supreme court for a ruling on the constitutional validity of such requests regardless of who are making them.

  • The government forced companies to make Agent Orange under the Defense Production Act. Clearly, that goes beyond what a judge can order as a search or seizure. I seems to be a completely unrelated authority to me. – DavePhD Feb 22 '16 at 19:15
  • I'm not aware of any legal challenges made by the manufacturers of agent orange -- laws has to be challenged for them to be ruled unconstitutional. – Soren Feb 22 '16 at 19:23
  • One of the agent orange makers (Hercules) had a supreme court case in which the act is discussed, but not really challenged. law.cornell.edu/supct/html/94-818.ZO.html There is a very recent case with RALLS CORPORATION state.gov/documents/organization/211963.pdf but there the president used the Defense Production Act to prevent Chinese ownership of windfarm, if I understand correctly. state.gov/documents/organization/211963.pdf – DavePhD Feb 22 '16 at 19:49
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    .. so you are saying that the law has never been challenged, while on an unrelated matter you are saying that we can prevent sale of strategic assets to foreign powers? – Soren Feb 22 '16 at 19:53
  • There are many parts to the law, and changes over the years. I don't know all the challenges to the law. The Youngstown Sheet case is the most famous challenge with 5 hours of Supreme Court arguments. en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer – DavePhD Feb 22 '16 at 19:58

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