DOJ Using Antiquated 1789 'All Writs Act' To Try To Force Phone Manufacturers To Help Unlock Encrypted Phones

from the any-and-all-methods dept

With the ongoing fight over mobile encryption in the last few months, it's no secret that law enforcement has been pushing for new laws that require backdoors into encrypted offerings. However, the Wall Street Journal also noted another little trick that the Justice Department appears to be testing out: dumping the problem back on the phone manufacturer, by using a centuries old law to require the [nameless] phone manufacturer to help law enforcement decrypt a phone. And, Ars Technica then found another example of it being used on the very same day in a different case to try to pressure Apple into helping to decrypt a phone.

Specifically, the DOJ used the All Writs Act -- a 1789 law, that is now codified as 28 USC 1651. It's pretty straightforward (and broad):
(a) 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.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
The case the WSJ found is not at all clear in the details. An order was issued to a phone manufacturer -- whose name is redacted to [XXX] Inc. -- saying that it needed to help the DOJ unlock the phone. Federal Court Magistrate Judge Gabriel Gorenstein (in the Southern District of NY) agreed, but issued the public ruling on it, perhaps recognizing that this is diving into slightly questionable territory. While noting that the All Writs Act was also the basis for so called "pen register" orders (recording phone numbers dialed by certain phones based on court orders), Gorenstein points out that this is a similar situation:
the Supreme Court held that a district court had authority under the All Writs Act to issue an order requiring a telephone company to provide technical assistance to the Government in its effort to install a "pen register" — a device for recording the numbers dialed on a telephone.... Thus, we conclude that it is appropriate to order the manufacturer here to attempt to unlock the cellphone so that the warrant may be executed as originally contemplated.
However, Gorenstein points out that the All Writs Act isn't without its limits, and thus he provides the phone manufacturer a chance to protest, arguing that the request is too burdensome:
The Government has provided a proposed Order that directs the manufacturer to provide "reasonable technical assistance" in unlocking the device. The proposed Order omits, however, any mention of a process by which the manufacturer may seek to the challenge the Order. Courts have held that due process requires that a third party subject to an order under the All Writs Act be afforded a hearing on the issue of burdensomeness prior to compelling it to provide assistance to the Government.... To the extent the manufacturer believes the order to be unduly burdensome or that it should be reimbursed for expenses, the manufacturer should be given clear notice that it has the opportunity to object to the Order.
It's unclear if the manufacturer did object to the order or not. In the other case, in the Northern District of California, Magistrate Judge Kandis Westmore doesn't hide Apple's name, noting that the FBI has the phone and wants Apple's help to decrypt it under the All Writs Act. The request, filed on the same day as the ruling in NY, notes that "in other cases, courts have ordered the unlocking of an iPhone under this authority." In other words, it looks like the DOJ wasted no time using the ruling in NY to suggest this was a common way of forcing the phone manufacturer to help decrypt phones. Though, as others have pointed out, other courts have actually pushed back on attempts by the feds to use the All Writs Act to spy on people like this.

Either way, Westmore doesn't go as far as Gorenstein, and rather notes that Apple only need provide "reasonable technical assistance" but "is not required to attempt to decrypt, or otherwise enable law enforcement's attempts to access any encrypted data." Instead:
Apple's reasonable technical assistance may include, but is not limited to, bypassing the iOS Device's user's passcode so that the agents may search the device, extracting data from the Device and copying the data onto an external hard drive or other storage medium that law enforcement agents may search, or otherwise circumventing the Device's security systems to allow law enforcement access to Data and to provide law enforcement with a copy of encrypted data stored on the iOS Device.
Westmore's response seems somewhat limited. It basically says that Apple can help getting the (encrypted) data off the device if the FBI can't figure out how, but it shouldn't have to help to decrypt it. The NY case ruling seems much more open ended. It's unclear if the nameless manufacturer in the NY case did push back on the ruling by protesting it. If it did, the efforts are probably sealed up. However, it does suggest that the DOJ is already figuring out a variety of ways to try to pressure even those who lock down information on devices to help the DOJ break those locks.

Filed Under: all writs act, doj, fbi, gabriel gorenstein, kandis westmore, mobile encryption, phone manufacturers

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  1. identicon
    Anonymous Coward, 3 Dec 2014 @ 8:47am

    Re: Re: Re: Re: 1789 or 1911?

    Seems it's the underlying principle of the 1789 origin though, so I'll settle down.

    It may surprise you, but I myself am not entirely convinced that the principle has remained the same. The surface similarity in phrasing and even apparent purpose may mask a substantial change in meaning due to changes in the overall legal context.

    It's difficult to convey to a modern lawyer how much of the English law of the 18th century (and even later) was driven by the forms of action. The legal term of art “writ” does not necessarily mean now what it meant in 1789.

    (See, generally, F. W. Maitland, The Forms of Action at Common Law, 1909.)

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