Tech companies are forced to unlock mobile phones by law enforcement under a 226-year-old law
An 18th-century law that forces third parties to unlock mobile devices is increasingly being used by the government, which prevents an important public debate about its right to do so.
On December 10, the American Civil Liberties Union (ACLU), along with the ACLU of Northern California and the Stanford Center for Internet and Society, filed a Freedom of Information Act requesting to ask records connected to the government’s use of the All Writs Act to compel device manufacturers to unlock mobile devices and give law enforcement access to the data stored on them. In order to make the public are aware of the complete extent of the government’s use of this statute to attempt such extraordinary authority, the ACLU filed this FOIA request.
Finally, the battle over when law enforcement can compel device manufacturers and other technology companies to go past the security measures on their products have come out in open after years of secrecy. The government’s attempt to get a court order that forced Apple to unlock and provide all the personal data that stored on a passcode-protected iPhone was challenged by Apple last month. While the government cited reasons that the All Writs Act authorizes such an order, in an amicus brief filed by the ACLU they argued that no such thing was done.
To give effect to a prior lawful order or an existing grant of authority, the All Writs Act allows a court to issue an order. This has been used for things such as ordering a prisoner be brought before a court. The Act does not let a court to invest law enforcement with investigative tools that has no authorization from Congress — like the extraordinary and unconstitutional conscription of a third party into getting information the third party does not possess or control.
While it is troubling to see the power the government has seeked in Apple’s case, it’s even more disturbing to think that the government, who by its own admission, has invoked it in at least 70 cases successfully.
The ACLU has filed the FOIA request, as they know very little to nothing about those 70 cases. The government often create a patchwork of public and non-public documents that are very hard to track down and identify, as they attempt to find individual, often sealed orders in cases that are not related. At the time of submission of amicus brief by ACLU, only three cases were known to them in which the government had applied for and obtained an order under the All Writs Act to force a third party to unlock a mobile device. In its brief, the three additional cases were cited by the government in which it had got similar orders. However, the government cited each case as a prototypical example of its use of the All Writs Act to force Apple to unlock a device, while the public had little or no notice that the government had acquired and obtained such an order. Many documents including the government’s reasons and justifications remain under seal for even for the six known cases.
Without regard to the current public debate about whether tech companies are required to build technological “backdoors” into secure devices, the government has used the All Writs Act to get what it wants, as this secrecy is especially insidious.
The law enforcement’s shortcut by way of the All Writs Act should be scrutinized, considering that this debate is ongoing and robust, and that even the Obama administration in the past publicly shelved its pursuit of legislation mandating the creation of backdoors.
The American people need to be provided more knowledge about the government’s parallel and largely hidden effort to put a policy into effect that adopts technology companies into law enforcement work.