In the face of increasing
security measures on consumer devices, the US Department of Justice appears to be returning to old school tactics to get at data in devices. A judge in New York
ordered an unnamed smartphone manufacturer to provide technical assistance in unlocking a device, something prosecutors argued under the All Writs Act of 1789. While the All Writs Act has been used in the past in technological situations, it could be the de facto means of law enforcement data requests in the future.
Under the
All Writs Act of 1789, courts are given broad power to compel others to aid them in cases under "their respective jurisdictions and agreeable to the usages and principles of law." The All Writs Act was originally passed as part of the Judiciary Act of 1789, but is thought of as a "residual source of authority to issue writs that are not otherwise covered by statute" based on guidance from the Supreme Court in
1985.
The Wall Street Journal reports that on October 31 Magistrate Judge Gabriel W. Gorenstein ordered an unnamed smartphone manufacturer to aid the court by providing "reasonable technical assistance" based on a proposed order from the government. Prosecutors pointed to the All Writs Act in the order to force the manufacturer to assist with "bypassing the lock screen" to execute an October 10 search warrant. The phone was obtained by the government in relation to a credit card fraud case, but data was unable to be retrieved as the device was locked.
Gorenstein used a case from 1977 to establish precedent, pointing to the
United States v. New York Telephone Co. Under the case, the Supreme Court held that the district court could call on the All Writs Act to require telephone companies to provide assistance to install pen registers for surveillance. Gorenstein says that the Act can be used to request technical assistance as long as it isn't "burdensome," though adds that precedent in other cases indicates that tracing information through an electronic device or "punching a few buttons" wouldn't be considered a burden.
"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," said Gorenstein in the order.
This isn't the first time that courts have forced people to retrieve data through the All Writs Act.
In 2012, a federal judge in Colorado ordered a woman decrypt the information on her notebook. The judge argued that since the All Writs Act could be used to require telephone companies to help with surveillance requests, the same logic could be used to force someone to decrypt data. The attorney for the defendant argued that doing so could be considered a violation of self-incrimination under the Fifth Amendment, but the judge concluded there was no implication.
While use of the All Writs Act
may not be new for prosecutors and courts, it could give an idea of how the government could circumvent security measures in smartphones in the future. Apple and Android recently enabled encryption in their operating systems that the companies are unable to break, as they don't keep copies of user passwords. Each company says that it cannot unlock or decrypt the information even if they were forced to. In the case of Apple, the company
says "it's not technically feasible" to respond to warrants that ask for data from devices running iOS 8.
With government agencies and law enforcement struggling with the shift in security consumer devices in a post-Snowden age, new approaches are needed. While an old idea, it would make sense that the All Writs Act could be used as a way to leverage evidence when the proper search warrants are obtained. In June, the Supreme Court ruled that a
search warrant must be obtained in order to search cell phones. Because of the ruling, law enforcement agencies can no longer search devices that they come into possession of, with specific exceptions for exigent circumstances.
"Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one," said Chief Justice John Roberts.
FBI Director James Comey decried the shift to corporations providing encryption measures, going as far as saying that Google and Apple were giving people the tools to be "above the law." Using the crutch of public safety, Comey believes that the need for consumer privacy is getting in the way to emergency situations that could be ended through an appropriate search via warrant.
Comey took his issues with consumer protection further, asking
Congress to update the Communications Assistance for Law Enforcement Act. Rather than requiring backdoor access, he wants to change the law in order "to use the front door with clarity and transparency." In doing so, security on devices could be effectively compromised, giving easier access to outside parties once the "front door" is discovered.
Gorenstein's order isn't without importance in its own right, as it gave the unnamed company the ability to fight. In the original government request there was no process that outlined how the manufacturer could challenge the order as it stood. He added that third-parties subjected to an All Writs Act should be granted a hearing on the "burdensomeness" prior to giving assistance, as due process requires. To add clarification that the manufacturer would be able to issue a challenge, Gorenstein made a modification that granted five days to submit an order for relief. Going further, former federal magistrate Brian Owsley tells the
Wall Street Journal that it could be notable that Gorenstein published the opinion since it such a routine action could be filed away into obscurity.
The idea of using the All Writs Act to get assistance from smartphone manufacturers is especially tricky when it comes to the idea of what could be considered technical assistance, unreasonable or burdensome. What one judge or law enforcement official may consider easy, a company could realize as a complex task that goes well beyond a few minutes of work. It's a careful line to tread, making orders under the Act necessary for last resort situations only. Gorenstein made it a point to give the manufacturer a chance to object, but the same can't be said of all judges.
That isn't to say that use of the Act is entirely inappropriate, but it shouldn't be turned to as a tool to violate privacy as the New York case suggests. There are numerous tools at the disposal of law enforcement and government agencies, but that doesn't mean access should be freely given or even guaranteed. In a time when someone can have their entire life stolen in an instant while visiting a coffee shop, a little consumer protection isn't too much to ask for.
- Jordan Anderson (
@draeno)
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