The Government vs. Your Smartphone: 18th-Century Law Used to Justify Decryptions

 

Article by Alison K. Lanier | 746 words

Smartphones are notorious goldmines of data on the personal lives of their users. And, as Gizmodo reports, the Department of Justice is bound and determined to establish a precedent that allows it to bypass the encryptions protecting that personal data. In an eye-grabbing headline, Gizmodo reports that the Department of Justice is using a law from the 1700s, the All Writs Act, to force Apple to unlock encrypted phones.

Smartphone Unlocked

Credit: InstantGsmUnlock.com

A Scary Precedent for Smartphone Investigations

In one case, a federal court in Oakland tried to oblige Apple to unlock an iPhone 5S in compliance with the All Writs Act. Prosecutors did already have a warrant for the phone itself. According to Cornell University Law School, the actual content of the law in question allows for exactly that.

“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

Gizmodo calls the entire scenario a “scary precedent” for investigative access to personal data.

A Brief and Jumbled History of Forced Decryption

This disclosure adds even more to the sprawling list of security and law enforcement-related issues, specifically over the legality of handing over smartphone data in criminal investigations. Apple, announcing its iOS 8, sought to make the question “moot,” as Ars Technica put it.

Apple announced: “Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.”

The key point there is that Apple has created a system where “photos, messages (including attachments), email, contacts, call history, iTunes content, notes and reminders [are] placed under the protection of your passcode.” Apple argues that it doesn’t have the ability to provide the data to law enforcement because it is not available to the company to begin with. So even if it were established that Apple was legally obligated to work as an agent of law enforcement, the private company would have no way to do so.

Needless to say, the Justice Department wasn’t overwhelmingly fond of this measure. The Department’s second-in-command delivered what The Wall Street Journal described as a “blunt” message to Apple. He accused Apple in no uncertain language of endangering the lives of children as a result of the police not having access to the personal data on a suspect’s smartphone. Drawing from the reports of people who attended the meeting, the WSJ said that law enforcement is essentially painting Apple’s ever-mounting security as a massive impediment to criminal investigation.

How Far Does the All Writs Act Reach?

In the Oakland case, reports Gizmodo, the ruling judge deemed that Apple was under no legal obligation to decrypt information and give it to law officials. Apple, in an awkward position, may turn over the data. iOS 8 will, Apple says, remove the company itself from the equation altogether by making sure that the capability to get to personal data remains solely with the individual.

The Hail Mary measure of invoking a law like the All Writs Act has raised eyebrows across the Internet from commentators and journalists. According to Ars Technica’s report, “Some legal experts are concerned that these rarely made public examples of the lengths the government is willing to go in defeating encrypted phones raise new questions as to how far the government can compel a private company to aid a criminal investigation.”

Ars Technica—or rather one of those legal experts, Alex Abdo—also raises the alarming question of what constitutes the kind of private property represented by personal data on a smartphone. Abdo, an attorney with the American Civil Liberties Union, asked if the All Writs Act, already in play for breaking open digital locks, could be used to “compel Master Lock to come to your house and break [a physical lock] open.”

Apparently, in the past, Apple has “routinely complied with such orders” to unlock iPhones in order to facilitate investigations, writes Garth Hire, an assistant US attorney in a recent federal court case in Oakland.

Ars Technica went to the Oakland courthouse in person to obtain and then to publish the court documents, which were not made available on PACER, the online database for federal court records. They’re now available on DocumentCloud.org for anyone to see if they’re interested in learning more about the legal status of personal data.

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