Feds Used 1789 Law To Force Apple, Google To Unlock Phones 63 Times (arstechnica.com)

An anonymous reader writes: The FBI has been citing a 1789 law, the All Writs Act, to compel Apple to assist the authorities in unlocking the iPhone 5c belonging to San Bernardino killer, Syed Farook. The law allows for judges to issue orders for people or companies to do something despite Congress not passing laws to cover specific instances. According to the Civil Liberties Union, the U.S. government has cited the All Writs Act in 63 cases since 2008 to compel Apple or Google to assist in accessing data stored on an iPhone or Android device. Most of the orders involved Apple. "To the extent we know about the underlying facts, these cases predominantly arise out of investigations into drug crimes," said Eliza Sweren-Becker, an ACLU attorney.

Comments

Re:Well that proves it

[harrkev]

Apple is the choice of terrorists!

So, phones should be insecure so that the government (and criminals) can get into them?

The same encryption that protects terrorists protects YOUR credit card info and naughty pictures on your phone.

The all writs act is probably unconstitutional

[Steve1952]

Personally, I think that the main reason why the Feds backed off is that they realized that if the all writs act ever gets to the Supreme Court, it is going down. Ironically a different part of the same 1789 judiciary act was declared unconstitutional by the Supreme Court in Marbury v. Madison (1803). This was the classic case where the Supreme Court struck down an act of Congress for the first time. Apple is an organization with enough power and credibility to take this case to the Supreme Court. So it made sense to back off and preserve the "validity" of the all writs act for future use.

Re:The all writs act is probably unconstitutional

[Anonymous Coward]

Why would it be unconstitutional? I'm not saying it isn't unconstitutional, just curious what the violation would be here.

On the other hand, I am very sick of hearing this "1789 Law" crap in the media. The Constitution is pretty old too, but we still consider it good law, yet this statute is considered trash simply because of its age? Talk about idiocracy.

Re:The all writs act is probably unconstitutional

[Eristone]

The All Writs Act is basically a blank check for the Courts to order someone (individual or company) to do something. It has not been challenged to the Supreme Court yet, so it is still in force. If it is challenged to the Supreme Court, the challenging party will cite it violates the 14th Amendment (Due Process) and possibly the 13th Amendment (Involuntary Servitude).

Re:The all writs act is probably unconstitutional

[Darinbob]

The constitution has been amended many times and interpreted many times. It's not the same thing that it started as. And yes, it needed interpretation because it is not clear and unambiguous.

Read the original, it is clunky and disjoint and just plain bad in places. It's a barely workable compromise between groups of people who didn't want to cooperate, federalists and anti-federalists. Two of the original colonies hadn't even signed it when the first congress met, and there were quite a few who felt that since the Articles of Confederation required a unanimous decision to amend it that the Constitution should also require a unanimous decision by the states before it could overturn the Articles of Confederation. So it's been on somewhat shaky grounds from the beginning. It only holds together out of inertia and the will of the people to abide by it, not because it's special or sacred.

The All Writs Act was written to cover necessary things that the government overlooked. Basically it allowed the courts to actually make decisions when there was no law guiding the courts. Ie, they can issue court orders. When there is actual law that is supposed to take precedent. The current All Writs Act however was issued in 1911 and has been amended since and comes with conditions that must be met, it's not really that ancient anymore. This was the law that was used to compel telephone companies to assist with wiretapping, in 1977, which was not difficult or time consuming for the telephone company instead it was very easy to do the wiretapping, and the Supreme Court upheld this district court ruling. This precedent was being re-used to try and get Apple to unlock it's phones, even though it is much more difficult and requires a lot more work and expense on Apple's part; so when it was relatively easy I suspect Google and Apple complied but when it got harder then Apple pushed back.

Why is it unconstitutional? Probably because it's akin to conscription which is a common argument. A company is being forced to do labor on behalf of the government. There is some debate about whether or not conscription or the draft is legal for various reasons so calling it unconstitutional is still vague on those grounds. The emotional argument is probably better since the constitution is all about rights and liberties andn restrictions on the government, whereas being forced to work for the government feels quite the opposite.

Re:The all writs act is probably unconstitutional

[Darinbob]

The current all writs act was from 1911 though and supercedes the original. It also has conditions for when it applies. It was used to enable wiretapping and was then upheld by the Supreme Court. The modern cases with Apple and Google use that wiretapping as a precedent.

Re:Well that proves it

[Tablizer]

which means Android is a leaky pile of [bleep]?

EFF and the All Writs Act

[caferace]

The EFF has covered this extensively, and long ago. Read up: https://www.eff.org/deeplinks/...

All Writ All Writ All Writ

[turkeydance]

says the FBI Buyers Club

Re:What is this All-Writs stuff about?

[Anonymous Coward]

Basically, it means the government doesn't give a fuck about the rule of law, and will do anything they can to expand what should be wartime powers to apply it to anything they can fucking think of.

Wake up America, and stop telling the fucking rest of the world you're the champions of liberty and freedom ... you're living in a police state, and most of your idiot citizens think this is a good fucking idea.

Fuck you, America. You have abandoned all of your principles domestically, and have already demonstrated that internationally you will do anything you see fit.

Congratulations. You're not only the enemy of your freedom, but you're the enemy of ours.

America, you are pretty much the enemy of everybody on the fucking planet who does not wish to submit to some horrible state police which is allowed to do anything they wish.

So shut the fuck up, stay the fuck out of our countries, and wallow in your own shit. But we don't give a fuck about what you assholes do anymore. Because you've given up on all semblance of everything you have ever claimed to be.

America is fucked. So just fuck off and stay the hell away from us as you decline into the shithole you've been aspiring to be for the last few decades.

You are now EVERYTHING you used to stand against, and stop fucking pretending otherwise.

Fuck America. If you're going to be some third world banana republic in which the state police can lie cheat and make up laws, you all fucking deserve what you get.

Ridiculous

[Anonymous Coward]

From a point of an European national living in a "police state" this is ridiculous. Why haven't the Congress enacted laws regulating communications companies related to warrants, national security and emergency circumstances, and technical monitoring made by the police under warrant? Is avoiding public discussion so important for the law enforcement that the rule of law and democracy are starting to rot?

Re:What is this All-Writs stuff about?

[DuckDodgers]

With respect to the national debt - other countries have carried far higher debts for far longer.

And remember too that solving the national debt using tax levels that this country had from 1941 through 1980, including when Republican Presidents Eisenhower, Nixon, and Ford were in office would work. Tax levels on the rich were literally more than twice what they are today, and nobody called Eisenhower, Nixon, or Ford a socialist.

Re:What is this All-Writs stuff about?

[cellocgw]

Basically it means the government always holds the trump card. They will always get their way no matter what.

And soon, Trump will hold the government card (or maybe In Soviet Russia...)