This week, the government dropped a high-profile case against Apple, in which it was trying to force the tech giant to help decrypt San Bernardino shooter Syed Farook's phone. The FBI had managed to get into the phone with a helpful, hack from a third party, which it declined to describe. But that doesn't mean the controversy is over. That was just one battle amidst a larger war over digital spaces into which the government can't easily peer.
It also wasn't the first time the government has invoked the All Writs Act from 1789 to force a smartphone giant to help it get into a user's locked phone. As part of its argument that Apple should help it out in the San Bernardino case, the government said that tech companies had complied with requests under the AWA about 70 other times. The American Civil Liberties Union (ACLU) went digging in court records and found those cases.
"We uncovered 63 confirmed cases in which the government applied for an order under the All Writs Act to compel Apple or Google to provide assistance in accessing data stored on a mobile device," writes the ACLU's Eliza Sweren-Becker. "To the extent we know about the underlying facts, these cases predominantly arise out of investigations into drug crimes."
They've now placed these cases in this interactive map, which includes where the case happened, which agency made the request, and what Google or Apple was asked to do:
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The map does not include the 9 other cases that Apple is currently fighting.
"The FBI wants you to think that it will use the All Writs Act only in extraordinary cases to force tech companies to assist in the unlocking of phones," writes Sweren-Becker. "Turns out, these kinds of orders have actually become quite ordinary."
The map, though, includes cases dating back to 2008, so this is 63 cases, but over six years. That means the All Writs Act has been invoked relatively rarely.
"We carefully scrutinize subpoenas and court orders to make sure they meet both the letter and spirit of the law," said a Google spokesperson. "However, we've never received an All Writs Act order like the one Apple recently fought that demands we build new tools that actively compromise our products' security. As our amicus shows, we would strongly object to such an order."
The ACLU and other civil liberties advocates are concerned about the broad powers granted to judges by the 1789 law, allowing them to, for example, build a backdoor into the iPhone. They have said this debate should play out instead in Congress. But Reuters reports that some senators are pushing for a new law that would give judges the same power:
A bipartisan group of U.S. senators has begun circulating long-awaited draft legislation that would give federal judges clear authority to order technology companies like Apple to help law enforcement officials access encrypted data, according to sources familiar with the discussions.
If that law were passed, Apple and Google may start getting many more requests from law enforcement for help with investigations.