ACLU Finds Widespread Use of All Writs Act to Compel Cooperation

Days after the FBI found a workaround that ended the epic legal battle to compel Apple’s cooperation in unlocking an encrypted iPhone, the American Civil Liberties Union on Wednesday announced that it had identified dozens of other criminal cases in which the government has made similar requests — both of Apple and of Google.

The government has used the All Writs Act to compel a phone manufacturer to hand over data to law enforcement in a total of 63 cases, the ACLU report shows. That appears to back up Apple’s and privacy advocates’ assertions that the government request would have direct implications on cases well beyond the San Bernardino encryption fight.

“We think this is important, because it shows just how widespread the government’s attempts to get tech firms to bypass phone security are, and they are mainly doing it in non-terrorism cases,” said ACLU spokesperson Josh Bell.

“It also makes it clear how inevitable another court showdown is,” he told the E-Commerce Times.

The 63 cases, dating back to 2008, are confirmed All Writs Act requests that force either Apple or Google to unlock their phones, with most of the prosecutions involving drug-related crimes, according to the ACLU.

Pending Showdowns

The ACLU knows of an additional 13 pending cases, said Sweren Becker, a staff attorney with the organization’s Speech, Privacy and Technology Project. Apple has confirmed 12 of those cases. An additional case in Massachusetts has not been confirmed due to a lack of publicly available information.

The ACLU expects to learn of additional cases from a Freedom of Information Act request jointly filed with the Stanford University Center for Internet and Society, Becker said.

The FBI’s demand that Apple write new code to help investigators access encrypted data took the public-private cooperation to a level that Google could not accommodate.

“We carefully scrutinize subpoenas and court orders to make sure they meet both the letter and spirit of the law,” Google said in a statement provided to the E-Commerce Times by spokesperson Aaron Stein.

“However we’ve never received an All Writs Act order like the one Apple recently fought that demands we build tools that actively compromise our products’ security,” the company added. “As our amicus shows, we would strongly object to such an order.”

Google joined a group of technology companies in an amicus brief filed earlier this month in support of Apple, as it fought the data transfer request by the Department of Justice in the San Bernardino terrorist shooting.

Google supports the government’s goal of thwarting terrorist acts, noted Richard Salgado, director of law enforcement and information security, in a blog post last month. However, the FBI request had implications that went far beyond the immediate case.

“The key question is whether the government should be able to use the All Writs Act to force private companies to actively compromise the safety and security features that we all build into our products,” Salgado wrote. “These are the same security features that we all develop to keep people safe from identity thieves, hackers and other criminals.”

A bad precedent in the Apple case could have forced companies to hack into the phones, computers, software or networks of their own customers, he went on to say.

Companies might cooperate in criminal investigations for a variety of reasons, including whether a proper warrant has been served, noted the Electronic Frontier Foundation, a group that has criticized the government’s position in the Apple encryption case.

“In the All Writs context, Apple has chosen to challenge the government’s power to require assistance accessing data on phones, which is allowed, but not required to do under the law,” EFF Staff Attprmeu Andrew Crocker told the E-Commerce Times.

Earlier Compliance

The government’s use of the All Writs Act to pursue encrypted data in criminal cases is warranted, Department of Justice officials maintained.

“The fact that federal law enforcement uses court process to obtain critical evidence in criminal investigations should not be surprising nor newsworthy,” said Peter Carr, a spokesperson for the Justice Department.

“The government has made it clear on multiple occasions in the court that judges across the country have issued prior All Writs Act orders to Apple, and counsel for Apple has noted in court that it received All Writs Act orders with frequency,” he told the E-Commerce Times.

Apple had an established track record of helping law enforcement agents with accessing passcode-locked iPhones under the All Writs Act, and never objected to such a request until October 2015, Carr noted.

Apple complied with requests in several criminal cases, Carr noted, including a 2008 child exploitation case in the Northern District of New York, which resulted in two guilty pleas and life sentences for the defendants; a Florida narcotics case that resulted in a conviction and a five year sentence; and a Washington state child pornography and sexual exploitation case that resulted in a guilty plea and 23-year prison sentence. Apple initially had objected to cooperating in that case, but eventually came around.

Apple officials were not immediately available for comment.