Ever since whistleblower Edward Snowden revealed that the National Security Agency has been spying on Americans’ private digital communications in a widespread, warrantless, and indiscriminate manner, technology companies like Google and Apple have begun to respond to consumer demand for anti-government snoop prevention tools by developing smartphones that come with unbeatable security measures that prevent anyone other than the phone’s owner from unlocking it and accessing its data. As courts wrestle with the question of whether judges can order cell phone companies to help cops gain access to suspects’ smartphone data, tech giants are stepping out in front of the issue by developing smartphones and tablets that they themselves can not even unlock.
In response to mobile technology companies’ self-interested attempts to protect users’ privacy, according to Ars Technica, federal prosecutors have successfully argued two times so far that an obscure catch-all law, signed in 1789 by George Washington during his first year in office, requires tech firms to assist the government in obtaining suspects’ private smartphone and tablet data. The All Writs Act, which first made its way into federal statute as a part of the Judiciary Act of 1789 and which was later tweaked into its current form in 1911, grants federal courts the power to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The above-provided video by Cybersecurity Fellow at the Center for International Security and Cooperation Jonathan Mayer breaks down the logic that prosecutors might use when arguing that the All Writs Act could be utilized to compel a tech company to unlock a phone or decrypt its data on behalf of the government.
The Wall Street Journal notes that, on October 31 of this year, prosecutors successfully utilized George Washington’s law to this effect when a judge ordered an unnamed cell phone company to unlock a smartphone in order to assist the court in effectuating a warrant in a New York credit card fraud case. Said US Magistrate Judge Gabriel Gorenstein, who presided over the case, “It is appropriate to order the manufacturer here to attempt to unlock the cellphone so that the warrant may be executed as originally contemplated.”
Ars Technica also provided court documents from a November 3, 2014 case in which federal attorneys used the All Writs Act to compel Apple to assist police in accessing data on an iPhone 5s that was seized from a suspect. Assistant US Attorney Garth Hire argued in the case, “This Court has the authority to order Apple, Inc., to use any capabilities it may have to unlock the iPhone.”
While Magistrate Judge Kandis Westmore did order Apple to help prosecutors obtain data from the phone during the proceedings, she placed limits on that compulsion that could set a precedent rendering this usage of the All Writs Act totally useless in future situations involving newer smartphones that tech companies do not have the ability to decrypt or unlock. Judge Westmore required Apple to “provide reasonable technical assistance to enable law enforcement agents to obtain access to unencrypted data.” She also limited the degree to which the government can compel Apple to help by saying, “It is further ordered that, to the extent that data on the iOS device is encrypted, Apple may provide a copy of the encrypted data to law enforcement but Apple is not required to attempt to decrypt, or otherwise enable law enforcement’s attempts to access any encrypted data.”
Federal Bureau of Investigation Director James Comey criticized tech companies for developing decryption-proof phones for customers in comments cited by The Register, “What concerns me about this is companies marketing something expressly to allow people to place themselves above the law.” It is not yet known how the All Writs Act will be applied in the future in cases involving phones that companies like Apple and Google can not unlock.
ACLU attorney Alex Abdo, in comments to Ars Technica, argued that the government should not be using an 18th century law to address a technological issue that could not possibly have been imagined by those who penned it. Said Abdo, “It is disconcerting that the government is relying on a catch-all law to seek surveillance powers that it should be seeking from Congress and the public… If the government wants new spying tools, it should allow our democratic process to debate them openly first.”
Some have raised concerns that the All Writs Act could be used to compel tech companies to provide backdoors into their devices, granting the government general access to all users’ data. The Electronic Frontier Foundation has argued that such an effort to twist a Founding Father’s words to undermine the Fourth Amendment would be “unreasonably burdensome” on tech companies, therefore failing to meet a crucial test in the law’s application in that it would require a company to weaken its own security measures, rendering its product ineffective at its advertised purpose.