The American Civil Liberties Union has dug up more proof that from the get-go the FBI’s attempt to crack open an iPhone used by the San Bernardino shooter Syed Rizwan Farook was not just about the one phone.
The ACLU found court documents and on Wednesday published an interactive map visualizing the Justice Department’s 63 requests through the courts since 2008 for either Apple or Google to assist law enforcement to break into an iOS or Android device using the contentious All Writs Act of 1789.
“The government insisted that its effort to force Apple to help break into an iPhone… was just about that one case,” the ACLU contends in a blog post introducing the interactive map. “Even though the FBI no longer needs Apple’s help in that case, the FBI’s request was part of a sustained government effort to exercise novel law enforcement power.”
The civil liberties organization says that the All Writs Act is that “novel law enforcement power” and that the FBI misled the public arguing the 227-year-old law was only being used as part of the investigation into the 2015 San Bernardino shootings. The ACLU reports the All Writs Act has been widely used since 2008 in cases primarily related to investigation of drug crimes.
The interactive map shows 63 confirmed cases. However, the ACLU says it’s aware of 13 more cases (included on the map) along with one case in Massachusetts and 12 pending cases identified by Apple (not reflected on the map).
The pivotal issue for legal scholars isn’t that the courts are demanding help from Apple and Google to crack open phones. Legal experts says it’s the fact that laws written in 1789 are being bent and used to force tech companies to comply.
“It’s a testament to our legal system that the All Writs Act can still be flexible enough to be relevant today,” said Ed McAndrew, a cyber security attorney with the law firm Ballard Spahr and former federal cybercrime prosecutor. “How relevant the All Writs Act is, we still don’t know,” he added.
McAndrew said that while the FBI’s legal battle with Apple may be over, it won’t be long before a similar case rises to the same level of precedent. “This is very much a live issue that is not going away just because the DOJ has dropped its request demanding Apple’s help,” he said.
“As each of the cases highlighted on this map indicate, the questions our legal system is struggling to answer are; what is the impact of encryption on law enforcement’s ability to investigate and mitigate crimes? Second, what does digital privacy and security mean and can things ever be too secure?” McAndrew said. McAndrew says that there are likely dozens more cases involving the All Writs Act scattered around the country and that the courts need consensus on how the All Writs Act can be used in each of those cases.
One of the more interesting ACLU revelations was the fact Google has also faced multiple requests by federal agents to assist with opening Android devices. In those cases (in Alabama, New Mexico, North Carolina, North Dakota, Oregon and South Dakota) the government also use the All Writs Act to help government investigators pry open phones.
In one drug related case that dates back to 2015, Google received a court order to help retrieve data off of two Android phones (Alcatel and Kyocera). “The Application seeks an order requiring Google to use any such capabilities, so as to assist agents in complying with the search warrant,” read the court order. The court demanded Google provide a “single password reset”, hand over the new password and also reset the Google account password.
The ACLU’s public disclosure of past cases comes on the heels of Apple’s clash with the Justice Department that centered around access to San Bernardino shooter Farook’s iPhone. That battle came to an end Monday when the FBI said it was able to hack into the phone and no longer needed Apple’s assistance.
Ever since the FBI insisted its order for Apple to help it crack into the terrorist’s cellphone was a one-time request, a chorus of skeptical privacy and security experts have questioned the government’s intent.
Apple CEO Tim Cook, in an open letter to Apple customers on Feb. 16 wrote: “The government suggests this tool could only be used once, on one phone. But that’s simply not true.”
Cook wrote that the Justice Department’s use of the All Writs Act of 1789 to justify forcing Apple to remove security features and features to the iPhone went too far. “The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data,” he wrote.
