December 4, 2014
(TheAntiMedia) Lawyers from the Department of Justice are using a 225-year-old law to force phone manufacturers into sharing encrypted data. The All Writs Act of 1789, first passed as a part of the Judiciary Act of 1789, is now codified as states that
“(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.”
This DOJ strategy follows Apple and Google’s announcements earlier in September that their new operating systems would have default encryption settings. The FBI and other departments were publicly offended by the move and claimed the companies would sanction criminal activity.
As a reaction to encryption, the government has successfully cited the sweeping All Writs Act in court two known times. Alex Abdo, ACLU attorney, has said of the tactic that the
“government’s application raises troubling questions about the extent to which it can force companies to break the products they sell.”
In New York, prosecutors obtained a search warrant for a cell phone in a credit card fraud case. When they couldn’t crack the pass code, they returned to the court and presented Magistrate Judge Gabriel Gorenstein with the antiquated law.
The phone manufacturer, whose identity is sealed (but who the Wall Street Journal suspects is Apple), was ordered to comply. However, the judge alluded to the company’s right to protest.
Gorenstein maintained that
“To the extent the manufacturer believes the order to be unduly burdensome or that it should be reimbursed for expenses, the manufacturer should be given clear notice that it has the opportunity to object to the Order.”
Due to the secrecy of the case, it is unknown whether or not the manufacturer resisted.
Lawyers for the government moved rapidly. On the same day of this decision, attorneys in Oakland, CA cited the credit card fraud case as legal precedent for Apple (this time publicly named) to share data. Garth Hire, assistant US Attorney, argued
“The government is aware, and can represent, that in other cases, courts have ordered the unlocking of an iPhone under this authority…Additionally, Apple has routinely complied with such orders.”
Judge Kandis Westmore was more “lenient” here, suggesting that while Apple can help get data off the phone, it
“is not required to attempt to decrypt, or otherwise enable law enforcement’s attempts to access any encrypted data.”
“provide reasonable technical assistance to enable law enforcement agents to obtain access to unencrypted data.”
Of “technical assistance,” director of civil liberties at Stanford University’s Center for Internet and Society, Jennifer Granick, asked, “Does this mean you have to do something to your product to make it surveillance friendly?”
There was once resistance to the use of the All Writs Act. In 2005, Judge Orenstein wrote:
“Thus, as far as I can tell, the government proposes that I use the All Writs Act in an entirely unprecedented way. To appreciate just how unprecedented the argument is, it is necessary to recognize that the government need only run this Hail Mary play if its arguments under the electronic surveillance and disclosure statutes fail…
…Such a broad reading of the statute invites an exercise of judicial activism that is breathtaking in its scope and fundamentally inconsistent with my understanding of the extent of my authority.”
In other words: the All Writs Act is to be used when all other logical reasoning fails.
In spite of Orenstein’s opinion, the two recent cases show the government intends to set a precedent for tapping into encrypted data using the 1789 law.
Though Abdo was pleased ”that the court…stopped short of ordering Apple to come up with a way to decrypt its customers’ data,” it remains that both cases still allow the invocation of this law.
“More broadly, 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.”
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