Google and Apple have been targeted for years in dozens of federal investigations seeking orders to unlock mobile devices, amplifying concerns among civil liberties advocates that law enforcement’s efforts pose an ongoing threat to privacy rights, according to court documents assembled by the American Civil Liberties Union.
In revealing that Google, like Apple, has been the target of such government demands, ACLU privacy advocates argue that court records demonstrate the recent showdown between the iPhone giant and the FBI in the San Bernardino terror probe was not an isolated example. The U.S. Justice Department this week abandoned its fight with Apple to force the company to unlock the iPhone of one of the attackers after securing outside help to access the data, but the ACLU maintains the government has been exploiting a 1789 law — the All Writs Act — to seek similar federal court orders for at least the past eight years.
The All Writs Act is a basic catchall statute that permits federal judges to order individuals or companies to take some form of action if the government can justify the demand.
“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,” Eliza Sweren-Becker, an ACLU privacy and free speech attorney, wrote on the organization’s blog Wednesday. “Turns out, these kinds of orders have actually become quite ordinary.”
Some experts, however, cautioned against reading too much into the past cases, stressing that the San Bernardino order was unique because it would have forced Apple to create a new way to hack its own security protections. They say the previous government efforts to unlock devices rely on the same requirements of companies that have been in place since the advent of telephone records, and also note there are substantial differences between Google and Apple security ecosystems.
“I think they mixed Apples and Androids here,” said Albert Gidari, director of privacy for Stanford law school’s Center for Internet and Society. “It tells us … about the past, it tells us nothing about tomorrow. If the San Bernardino order is a harbinger of things to come, it’s an ugly future that will be fought over very hard.”
A review of the more than 70 cases identified by the ACLU shows that the government has typically sought All Writs Act orders in common criminal investigations, particularly drug probes. There have been 14 cases revealed in California, including two in the Bay Area federal courts, ranging from seeking orders for Google to reset passwords for Android-operated smartphones to asking Apple to unlock iPhones and iPads.
Google was among the many leading tech companies to back Apple in the San Bernardino case, where those Silicon Valley powers argued that the FBI demand to hack smartphone encryption protections jeopardized the nation’s privacy rights.
“We carefully scrutinize subpoenas and court orders to make sure they meet both the letter and spirit of the law,” Google said in a statement Wednesday. “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.”
Aside from the Google orders, the ACLU’s data is consistent with information already revealed by the Justice Department and Apple in the legal battle in San Bernardino, as well as a continuing case in Brooklyn, where a federal judge recently backed Apple in its refusal to comply with an FBI request to unlock an iPhone in a drug case.
In the New York case, Apple disclosed that it has faced at least a dozen such requests in courts around the country since last fall. In addition, the Justice Department said in court papers that it has successfully secured assistance to unlock devices from Apple in dozens of cases in recent years, arguing Apple only recently changed its position to resist such court orders.
Apple has responded by saying that the requests in the San Bernardino and New York cases were unique because they required the company to develop a new software program to crack its own security protections. A federal judge in New York is currently weighing the Justice Department’s appeal of the order backing Apple, although prosecutors this week indicated they will report in April on whether they will continue the fight in light of the developments in the San Bernardino case.
But with the prospect for more conflict between law enforcement and the tech industry expected, privacy experts continue to argue that Congress should clarify the law as more demands to access smartphones and tablets crop up in the federal courts.
“We have seen that the public has a strong opinion on the matter, on both sides of the issue, which may require a broader dialogue that may only be properly addressed through congressional action,” said Valerie Barreiro, interim director of USC’s intellectual property and technology law clinic. “Our elected leaders should realize that it needs to be handled sooner rather than later.”
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.
