Last month the government tried to use a 226-year-old law to compel Apple to hand over user data from suspected criminals’ devices. This is part of a larger law enforcement trend attempting to use the law in a similar manner, according to the ACLU.
The government has successfully used the All Writs Act, which was originally passed in 1789 and then in its current form in 1911, at least 70 times since 2008 in cases related to Apple alone in order to force the company to unlock mobile devices, according to the Wall Street Journal. In response to this perceived abuse of power, the American Civil Liberties Union has filed a Freedom of Information Act request seeking records relating to the government’s use of the Act to unlock smartphones.
The civil liberties organization notes, however, that Apple has successfully fought a government attempt to get a court order that would have forced the tech giant to hand over personal data stored on a passcode-protected iPhone. The government argued that the All Writs Act authorizes such an order, but the ACLU said the Act doesn’t give the government the ability to compel a third party to provide a user’s personal information due to the Bill of Rights – which was actually ratified in 1791, two years after the All Writs Act first passed.
"The All Writs Act permits a court to issue an order to give effect to a prior lawful order or an existing grant of authority, and has been used for such things as ordering a prisoner be brought before a court,” the ACLU said in a blog post. “The Act does not allow a court to invest law enforcement with investigative tools that Congress has not authorized – like the extraordinary and unconstitutional conscription of a third party into obtaining information the third party does not possess or control.”
The government has, according to the ACLU, used the law to acquire individual and oftentimes sealed orders from previous cases unrelated to the one being investigating, “creating a patchwork of public and non-public documents that are difficult to track down and identify.”
“The public had little or no notice that the government sought and obtained such an order,” the blog post stated.
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The ACLU says that there are only six cases where the law is known to have been used being used, but the circumstances surrounding even these remain murky as they involve documents detailing the government’s justification that remain under seal.
This new tactic for obtaining personal information comes during an ongoing debate on whether government should have backdoor access to devices that ordinary citizens and business use. Many law enforcement agencies, such as the FBI, have asked Silicon Valley to include built-in “golden keys” to hardware and software that only the government can access. Experts argue that this only decreases security by creating another vector of attack for hackers to exploit.