Citation[edit | edit source]

All Writs Act, enacted as part of the Judiciary Act of 1789,[1] codified at 28 U.S.C. §1651.

Overview[edit | edit source]

The Act states:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

The U.S. Supreme Court has observed that "[t]he All Writs Act is a residual source of legal authority to issue writs that are not otherwise covered by statute."[2] In other words, the Act performs a gap-filling function that can be used "to effectuate and prevent the frustration of orders" of the court.[3] "[U]nless appropriately confined by Congress," the Court has noted, "a federal court may avail itself of all auxiliary writs" needed "to achieve the ends of justice entrusted to it."[4]

However, and this is an important caveat, the Court has warned that the All Writs Act "does not authorize [courts] to issue ad hoc writs whenever compliance with the statutory procedures appears inconvenient or less appropriate."[5]

One might argue that because the All Writs Act was enacted 226 years ago it is ill-suited to address issues arising from government access to evidence in the digital era. Two things should be considered when assessing this assertion. First, courts apply old laws all the time. The Bill of Rights, including the Fourth Amendment, was ratified in 1791, two years after the All Writs Act was enacted, and the text has not changed since. The Fourth Amendment in particular is applied to ever-changing factual scenarios, including those involving new technologies, on a daily basis. Second, the All Writs Act, like other grants of judicial authority, was written broadly enough — "all writs necessary and appropriate" — to allow it sufficient flexibility to be applied to changing technological situations.

The past litigation, has centered on a much more recent, although pre-digital, 1977 case, United States v. New York Tel. Co.[6]

References[edit | edit source]

  1. Act of Sept. 24, 1789, 1 Stat. 81-82.
  2. Pennsylvania Bureau of Correction v. U.S. Marshals Service, 474 U.S. 34, 43 (1985) (full-text).
  3. United States v. New York Tel. Co., 434 U.S. 159, 172 (1977) (full-text).
  4. Id. at 172-73 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 273 (1942) (full-text)).
  5. Pennsylvania Bureau of Correction, 474 U.S. at 43.
  6. 434 U.S. 159 (1977).
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