FBI vs Apple vs Pro Wrestling
Privacy heads are all aflutter over the FBI vs Apple fight about the San Bernadino shooter’s phone. There is a good reason to be concerned yourself as plenty of other people have made the case for. There is an element in this that’s frequently presented as baffling to the layman, and that is the FBI’s use of the All Writs Act that originated in 1789. What’s baffling isn’t the text of the law, which essentially gives the courts power to force any institution to adhere to any order. It’s harder to explain why the FBI feels the need to reach into the past at all. It’s this that I want to address: to elaborate (by way of analogy) on the reasons precedence has a force in the way we view legal action.
The question at its base is ‘Why does an argument which references the All Writs Act resonate more strongly with us than one that doesn’t?’ It has to be admitted that it’s not as if the FBI is changing its argument by this reference. Whether or not the FBI was able to succeed with this tactic in the past shouldn’t have any particular bearing on whether or not it succeeds now. After all, laws are often amended, extended, or repealed after their initial adoption so it’s not as though every decision taken in the past is seen as binding. On that level alone it seems as though the All Writs Act should be considered as little more than a slip of paper or a few lines in a dusty register.
To anyone with a working brain it’s clear that the FBI does not actually need a ‘legal standing’ with which to operate here. It has already been admitted that the NSA could unlock the phone whenever asked. Therefore we can deduce that what the FBI here wants is not the technical ability to get into the phone but the precedent over which to get into other secure data stores. That brings us right back to where we started: why does precedent matter? The FBI can conceivably continue to unlock phones and devices as long as it wants. Precedent will give it no ability that it did not have before. In truth, the idea of precedent is a fiction.
This is why I feel it’s necessary to draw these concepts out. Many, if not most, of our political ideas are fictions that can be useful, even to the masses, as long as we understand how they operate. It’s easy to view precedent as an actual binding feature of law and government but even a cursory investigation shows that it’s illusory.
So what is it?
Precedence is a connection with legitimacy. Legitimacy is how we as a constituency connect with those promoting themselves as the government. If we view them as legitimate we will go along with what they say, and vice versa. This initial legitimacy can come about through a number of ways — elections, adoption by an elected body, general acclaim — but what’s important about precedence is that it presents itself as having an unbroken descent from that original legitimacy. Rather than having a new conversation about legitimacy we instead say ‘this has already been decided’. It’s then incumbent upon us to investigate whether or not the precedent applies. Ideally it represents a constant process of checking but in reality it is a method of circumventing that discussion altogether. We as an audience come to view the call to precedent as the evidence in itself. In this case, the fact that the FBI has summoned the All Writs Act which was passed by Congress is enough to justify its use in this regard. Rather than arguing why a law with ridiculously broad powers is even on the books, we simply say this has been decided by a group that we trust and therefore the discussion on it is over.
How many are in a position to really dig into the nuts and bolts of this decision? How many of us understand what differences there might be between the US vs New York Telephone Co case of 1977 and the FBI vs Apple case today? We are assured that the lawyers involved are experts on this but what they know or say honestly doesn’t matter. A case of this nature, with such ramifications, is naturally going to be decided by the input of those without special expertise: jurors, public spectators, and even judges. The technical details will very easily become subsumed under a bigger consideration. If we as a public believe wholeheartedly that Apple should win the case, what are the chances that they’ll lose? And even if they did, we could expect to see that Apple’s side would be pushed in subsequent decisions both legislative and judicial. The question of precedent is one that can easily convince those who are not expert on the details — jurors, public spectators, and even judges — that one side is right when, if made to sift through the details personally, they may choose another course.
For most people I think these ideas about legitimacy are somewhat esoteric, as they have to be. If an electrician comes to your house to fix the wiring, you probably don’t know how it works but they’ll be able to do it. When we talk about precedent and the examination of old legal decisions we are into the wiring of our country. We need some sort of simplification to be able to engage with it at all.
One endeavor in which this simplification is common, however, is sport. Sports, and one sport in particular, provide a stark method of examining constituency and legitimacy precisely because we as an audience almost force ourselves not to worry about the nitty-gritty so that our passions are only drawn by the simplified level.
What I’m not going to do is talk about the playing of sports. It’s the management that is of interest to me now, and more specifically the way in which sport encourages its fanbase and how it gains and loses prestige.
World football fans are certainly familiar with the differences between the FA Cup and the League Cup in England. They know that everybody wants to get into the Premier League whose championship is probably the greatest prize in English football. They know that the World Cup and the Club World Cup are different competitions and they know, most of all, that each of these competitions confers a different prestige. When a team wins we want them to defend that victory in the next contest. We want to see matches that progress along the rules, whatever the rules are, and emphasize fair play, whatever that entails.
In the 1999–2000 FA Cup, the defending team Manchester United decided to skip their entry. They had good reasons, including a loaded post-season, but it still stirred up a great deal of controversy and tarnished the cup’s reputation. From an outside perspective it seems odd that in a tournament composed of a massive number of teams, the exclusion of one could have any effect on the event’s reputation. It’s the idea of continuity that is at heart here. We as constituents wish to see that this game isn’t a new game, this is the same competition, these are the same people who are testing themselves, so that when the next champion raises the trophy everyone knows that they ran the same field that everyone else did: no one could say that they did it wrong. We might understand why it happened but, in general, that doesn’t change the feeling.
Combat sports are much the same way and, because they’re on a challenge system, even heighten passions over legitimacy. UFC interim champions often have the stink of being ‘not real’. Daniel Cormier, a top level fighter and current UFC Light Heavyweight Champion, isn’t regarded in the same way as the previous champ Jon Jones in large part because he didn’t defeat Jones for the belt and in fact took the loss in Jones’s last defense. Cormier is undoubtedly eager to fight Jones and put together what is lacking in his legitimacy. The fact that Daniel Cormier has positioned himself as the best light heavyweight in UFC is less important than the piece still missing.
The FBI could push itself forward in this case, it could take what it wants, but would we as an audience still feel something is missing? I believe so. This is an illustration of legitimacy and its importance on our perception. For an illustration of precedence, I will focus on the sport that’s not a sport: professional wrestling.
The reason for wrestling rather than boxing or football? It’s worked. That means that people are taking decisions knowing, for the most part, what the outcome will be: who wins, who is the champion, who has a storyline injury. What is unknown is how the audience will react. That’s a good approximation of the situation the FBI faces now, where they can do whatever they like in the near-term but what concerns them is how the public, how the national constituency, will take to it.
Like in all sports, pro wrestling fans love to watch champions. The bigger the champion as far as prestige, the bigger the draw (number of attendees). For a long time there weren’t clearly demarcated promotions like there are now, and even up to the 60s and 70s wrestling was pretty much wide open. Therefore, over time, only one person can credibly call themselves the world champion; legitimacy is determined by beating all competition and if two world champions are roaming around the same space, either they fight or people get skeptical of both of them. The United States had a unified world champion for the first time in 1908 with Frank Gotch. Since then, promoters did their best to book the champion as often as possible because with him on the show they were much more likely to have a good house. When the champion became beholden to a few promoters and cut down their areas, those shut out would try and gain a plausible claim on the title that they could take back to their area.
What’s important for these guys isn’t the argument itself, it’s the connection with history. Ideally the championship only changes hands in a clean match in which all parties can be clear on who won and who lost. This didn’t always happen. Disqualification title switches became common pretty early, sometimes merely for the show but other times as a way to cheat an unsuspecting guy out of the title. Of course, the person who was cheated would still claim their belt, but the likelihood that they’d go back to where they’d been swindled was pretty low so now two people claimed the title. Remember what I said before about ‘the world isn’t big enough for two champions’? Well, that’s still true, but at this time the world each promoter runs in is shrinking quick. The legitimacy that matters to them now is not the actual current legitimacy of being the best in the world, which would require them to have their wrestler beat all the other top wrestlers out there. Instead they’re worried about the legitimacy of precedence. Can we draw the line back to a champion we all recognize?
When the WWWF split from the National Wrestling Alliance, one of the points of contention was the WWWF/New York-allied NWA champion Buddy Rogers. Wrestling legend Lou Thesz was sent up to take the title and did so, but the WWWF decided that he had not actually won the belt due to a technicality. This technicality was, of course, never uniformly enforced; the WWWF claimed that a title couldn’t change hands on a 1 fall match even though several such matches had been held for the title in the past. The ruling was only used to explain to those constituents who had witnessed the Thesz decision that what they had actually seen didn’t matter. The evidence was not important. The current situation was not important. Buddy Rogers had a precedence-based claim to the title and, as soon as the claim was ratified, it was accepted.
The point I want to make here is that they had to do this or something similar to protect themselves. We might question why a company would not just create a championship out of whole cloth and put it on someone they nominated. The answer is that it would ring false with the audience. Take Baltimore wrestling in the 1950s, after all champions had stopped coming to the town. Take Los Angeles: in the late 1940s riding high and in 1952 played host to a landmark match in which NWA champion Lou Thesz defeated the California ‘world’ champ Baron Michele Leone, doing the biggest gate of all time, and immediately after LA fell right into the pits. Having a champion was vital to the efforts of these promoters and it would not do to have one without a history. To promote someone as the world champion, they had to have either the present legitimacy or the precedent. Without it they were stuck.
For a more contemporary example, imagine if CM Punk had actually walked out with the WWE championship when he defeated John Cena at WWE Money in the Bank 2011? What if he’d started wrestling in Japan, wouldn’t more of his fans and more WWE fans in general have started following that just to see where he was taking the ‘real WWE title’? Would John Cena gaining a ‘new’ belt have resonated with us? Of course, it’s just a show, but we review shows all the time and we analyze how effective their storylines are. Let’s use that here. Is John Cena, in storyline, as strong of a champion if he’s won it without defeating CM Punk again? If Punk lost it in Japan, would Hiroshi Tanahashi or Satoshi Kojima be the storyline ‘real WWE champion’?
These questions matter because, even as fictive as they may seem, they have an effect on how we react to what we see. An appeal to the All Writs Act is as fictive as CM Punk leaving WWE with the belt because there is nothing that the act or the appeal gives the FBI that it did not already have. It is entirely an attempt to connect their actions now with what has gone before rather than deal directly with the argument at hand. In the terms of sports and pro wrestling it is much easier to see how these issues of legitimacy and precedence resonate, even when the result is pre-determined. Understanding them is essential if one hopes to properly challenge the use of precedent. Unfortunately, though sport can help explain how precedence works, it offers no insight on how to proceed.
Sport operates by abstracting all the small details, reducing debates over rules application to arguments about referees and compressing long-running rivalries into naming the current holder of a gleaming trophy. In government, the most honest way to operate is completely against that philosophy. It’s my belief that at a certain point you can’t avoid the abstractions involved in being outside of a complex situation. But if we’re going to challenge such precedent it helps us to understand that the summoning of precedent itself is an attempt to cloud the issues. As an argument in its own right it holds no weight and very frequently the older reference has not enough weight either.