63 Times the Feds Asked Apple and Google to Help Unlock Phones
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63 Times the Feds Asked Apple and Google to Help Unlock Phones

The ACLU has found 63 publicly available court cases in which the government asked Apple or Google for ‘technical assistance’ to unlock a smartphone.

The idea that the FBI only cared about unlocking just one iPhone in its recently-abandoned legal battle with Apple was always fiction: The American Civil Liberties Union has discovered at least 63 court orders in 22 states in which the federal government invoked the All Writs Act to compel Apple or Google to help it access data on a password-protected phone in a criminal investigation.

The cases run the gamut from minor drug charges to child pornography and involve many different agencies within the Department of Justice, including the FBI, the Secret Service, the Department of Homeland Security, the Drug Enforcement Agency, and the Bureau of Alcohol, Tobacco, and Firearms. In addition, there's at least one case brought by the Bureau of Land Management, in relation to an alleged marijuana grow operation. None of the cases are believed to have required Apple or Google to write new software that could have broken the security of other phones, which was a key component of the San Bernardino case.

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That the government has asked Apple for assistance in getting into iPhones is no surprise, but seeing the documents gives further clarity on what, specifically, it's asking for. It's also the first confirmation that the government has brought an All Writs Act case against Google.

"These cases show that the government has an interest in getting this kind of assistance from tech companies in a wide variety of cases," ACLU attorney Esha Bhandari told me. "The government and law enforcement in general have an interest in using the All Writs Act in a wide variety of investigations, including criminal investigations."

The All Writs Act, if you're not familiar, is a 1789 law that the federal government says allows it to compel third parties to help it conduct criminal investigations. The law is at the forefront of the current encryption debate and was the main law the FBI was using to attempt to compel Apple to write new software that would have helped the agency break into the iPhone 5C belonging to one of the San Bernardino shooters.

The ACLU's findings, which likely represent just a handful of the overall cases in which the All Writs Act was used, show that the federal government has come to rely on the law to turn Google and Apple into its personal tech support team. These instances are also important because, in the San Bernardino case, it seemed like we were heading toward setting a precedent as to whether or not the use of the All Writs Act to compel tech companies to provide assistance to the government was appropriate.

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"We've just been trying to track down whatever is available publicly—it's sort of inconsistent because a lot of these cases are under seal," Bhandari said, adding that the ACLU's team used two popular court case databases to find these cases. "Our team did a series of deep PACER and WestLaw searches, getting creative with search terms and tracking down clues to finding court docket numbers. We posted whatever we could find."

Both Apple and Google are believed to have complied with all 63 of these court orders. Apple has only begun resisting the court orders once courts began ordering that Apple help the government extract data from encrypted iPhones, which would have required that the company write new software that would undermine security on all iPhones.

"We carefully scrutinize subpoenas and court orders to make sure they meet both the letter and spirit of the law," Google told me. "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."

Apple did not respond to a request for comment; however, the company has identified 12 pending cases where the All Writs Act is being used against them. After the FBI dropped the San Bernardino case earlier this week (after finding an alternative method into the iPhone), Apple said the case "never should have been brought."

"From the beginning, we objected to the FBI's demand that Apple build a backdoor into the iPhone because we believed it was wrong and would set a dangerous precedent," Apple said. "We will continue to help law enforcement with their investigations, as we have done all along, and we will continue to increase the security of our products as the threats and attacks on our data become more frequent and more sophisticated."