The federal government is using an 18th century law to force manufacturers to unlock smartphones and other mobile devices, and it has done so without congressional approval, the American Civil Liberties Union (ACLU) is alleging.
The law, the All Writs Act, was part of the Judiciary Act of 1789 and was passed when George Washington was president. It gives federal judges the power to compel individuals to comply with laws.
The ACLU this month alleged that the Justice Department is using the Act to do an end-run around Congress and constitutionally protected rights.
“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,” ACLU staff attorneys Eliza Sweren-Becker and Esha Bhandari wrote of the Justice Department’s efforts to force Apple and other tech companies to unlock devices. “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.”
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In 2014, an assistant US attorney used the All Writs Act to argue courts had the power to force smartphone manufactures to comply in criminal cases. “This Court has the authority to order Apple, Inc., to use any capabilities it may have to unlock the iPhone,” the attorney wrote in a request for a court order uncovered by Ars Technica.
“The government is aware, and can represent, that in other cases, courts have ordered the unlocking of an iPhone under this authority,” the attorney wrote. “Additionally, Apple has routinely complied with such orders.”
Apple is fighting the request in court.
That case is one of at least 70 in which the Justice Department has forced or tried to force companies like Apple to unlock customers’ phones, the ACLU alleges.
The ACLU filed a Freedom of Information Act request Dec. 10, asking for more documents about the program.
The Electronic Frontier Foundation (EFF) also has sided with smartphone manufacturers.
“The All Writs Act does not authorize an order allowing the government to compel Apple to unlock, and potentially to decrypt data stored on, private devices seized by the government,” an amicus curiae (friend-of-the court) brief from the ACLU and EFF read.
It was filed on behalf of Apple in a case in US District Court in New York State.
In that case, Apple is trying to keep a federal judge from forcing it to unlock iPhones so law enforcement can see what’s on them. Apple is also trying to stop the government from forcing it to reveal customers’ encrypted information.
“It would be unconstitutional to conscript Apple into governmental service to assist in gaining access to information that Apple does not possess or control,” the ACLU/EFF brief charges.
The same brief says, “As this Court and others have recognized, an order compelling third-party conduct pursuant to the All Writs Act necessarily implicates the third party’s due process rights under the Fifth Amendment.”
Incredibly, it looks as if some very old laws, passed when the Founders were alive, could be a threat to our constitutional rights today.
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