U.S. government agencies have filed more than 70 orders requiring Apple or Google to help law enforcement agencies unlock mobile devices since 2008, despite the agency insisting its fight with Apple in a recent terrorism case was limited in scope.
The Department of Justice dropped its California case against Apple after the FBI found a way to break into one of the San Bernardino shooters’ iPhone without assistance.
But the American Civil Liberties Union has identified 64 cases where representatives of the DOJ have filed All Writs Act orders seeking assistance from Apple or Google to unlock mobile devices. The ACLU’s numbers are on top of 12 cases identified by Apple lawyer Marc Zwillinger in mid-February, the group said.
The DOJ and FBI insisted their efforts to require Apple to help them break into an iPhone in the San Bernardino shootings was “just about that one case,” ACLU lawyer Eliza Sweren-Becker wrote in a blog post. “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 All Writs Act, from 1789, allows courts, with some limits, to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
The FBI has insisted its request in the Apple California case was “narrow.”
“The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message,” FBI Director James Comey wrote in February. “The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We don’t want to break anyone’s encryption or set a master key loose on the land.”
Asked for comment on the more than 70 cases, an FBI spokesman referred back to that Comey blog post. Many of the cases identified by the ACLU involve the Drug Enforcement Administration, like the FBI a part of the DOJ, or the Department of Homeland Security, a separate agency.
Nine of the cases identified by the ACLU are targeted at Google. But the company has not received any order “like the one Apple recently fought that demands we build new tools that actively compromise our products’ security,” a Google spokesman said by email. “We would strongly object to such an order.”
In seven of those nine Google cases, the DOJ has requested the company’s help with password resets, a different type of assistance than the recent California case in which the FBI wanted Apple to rewrite the iPhone operating system as a way to defeat password protections. In the other two Google cases, the type of assistance is unspecified.
Although one case dates back to 2008 and a handful back to 2010 and 2011, about 30 of the cases identified by the ACLU are from 2015 or 2016. Many of the cases involve illegal drugs and not terrorism, the group said.
Apple has resisted the All Writs Orders in many of the recent cases, according to information from Zwillinger. Beyond the California case, the most active case is in Brooklyn, New York, where the FBI has appealed an order from Magistrate Judge James Orenstein, who ruled that Apple isn’t required to assist the agency in a drug case.
The ACLU published a map and a list of the All Writs Act cases on Wednesday.
The DOJ has said it still plans to use courts to force smartphone makers to help law enforcement agencies unlock devices. The agency filed a warrant in Sacremento on March 1 asking smartphone makers to help break into a terrorism suspect’s phones, Forbes reported.