This Map Shows How the Apple-FBI Fight Was About Much More Than One Phone

All Writs Act Orders for Assistance From Tech Companies

Update: 4/1/2016:  The ACLU of Massachusetts has filed a motion seeking to unseal the docket for the suspected All Writs Act case in that state, arguing that the public should have access to case information to inform the debate on whether law enforcement can conscript technology companies to undermine device security.

The government insisted that its effort to force Apple to help break into an iPhone as part of the investigation into the 2015 San Bernardino shootings was just about that one case. Even though the FBI no longer needs Apple’s help in that case, the FBI’s request was part of a sustained government effort to exercise novel law enforcement power.

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At the heart of the legal battle is the All Writs Act, originally passed in 1789, which gives courts the authority to issue orders necessary to enforce other lawful orders or decisions. We’ve found that the government has been using the law to force tech companies to help unlock their customers’ devices in dozens of cases since 2008. We’ve gathered all of those cases together on an interactive map we published today.

After the Justice Department revealed in a case in Brooklyn that it had already secured approximately 70 such orders, the ACLU and the ACLU of Massachusetts went digging for them. We uncovered 63 confirmed cases in which the government applied for an order under the All Writs Act to compel Apple or Google to provide assistance in accessing data stored on a mobile device. To the extent we know about the underlying facts, these cases predominantly arise out of investigations into drug crimes.

The map identifies where and when these cases have arisen, their docket numbers, and which federal agency conducted the investigation. Public court documents associated with the cases can be found here. The ACLU expects to learn about additional All Writs Act cases in response to our FOIA requests — filed jointly with the Stanford Center for Internet and Society — and we will update this map as more information becomes available.

There are even more cases out there. In addition to the 63 confirmed cases, we know of up to 13 additional cases, which are reflected on the map. Apple has identified 12 pending cases (though their docket numbers remain unknown), and we uncovered one case in Massachusetts, which has not yet been confirmed because of a lack of publicly available information.

The FBI wants you to think that it will use the All Writs Act only in extraordinary cases to force tech companies to assist in the unlocking of phones. Turns out, these kinds of orders have actually become quite ordinary.

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Anonymous

What about my mind? That certainly is a "thing" exempt from search. But on the matter of a cell phone, I agree. Perfectly fine to search for and seize a cell phone with proper warrants. But to then compel a third party to deconstruct, disassemble, or otherwise unlock the device? How does that square with the Fourth Amendment?

Anonymous

"Except that there are places that are free from search...
Journalists notes are warrant proof - The Privacy Protection Act of 1980
Diplomatic pouches are warrant proof - Article 27.3 of the Vienna Convention on Diplomatic Relations
Medical Records are warrant proof in some cases when protected by Doctor-Patient privilege laws in many states."

Uh, no.

Journalist notes are NOT warrant proof, and may be seized under a search warrant if there is “probable cause to believe” the reporter has committed, or is committing, a crime to which the materials relate. Also, if the information is necessary to prevent death or serious harm to someone, it may be seized. “Documentary materials” also may be seized under a search warrant if the advance notice provided when a subpoena is issued would result in the destruction of the materials, or if a previous subpoena has been ignored, all legal remedies to enforce the subpoena have been exhausted and any further delay in the trial or investigation would “threaten the interests of justice.” Additionally, neither “work product materials” nor “documentary materials” are protected from search or seizure if they relate to national security or child pornography.

So you got that wrong.

There is no Fourth Amendment "exception" for diplomatic pouches. The pouches are free from search and seizure because the signing parties AGREED they are to be considered the property of the country from which they came, and therefore not subject to the laws of the US, including the Fourth Amendment. So WTF does that have to do with cell phones here in the US??

Medical records are NOT warrant proof under ANY circumstances where law enforcement is concerned if the records contain possible evidence of a crime, either as a suspect or a victim, and in fact, law enforcement can get your medical records under HIPAA and Patriot Act WITHOUT a warrant:

aclu.org/faq-government-access-medical-records

So you got that wrong, too.

Anonymous

"Not even remotely true. The confession between parishioner and priest is protected, it can't be broken. Discussions between client and lawyer, largely exempt from any search and seizure. Doctor and patient confidence is an easy third area where discussions and findings are exempt until even after death of the patient. Look at the special master process to use medical records in criminal and civil cases to see how well these records are supposed to be protected."

Wow. I hope you're not a lawyer. First of all, the priest/penitent privilege and doctor/patient privileges cover conversations, which cannot be seized by search warrant. They are covered by the Fifth Amendment, not the Fourth Amendment.

But you're trying to tell us that, for example, that the Church is not subject to a search warrant for records by law enforcement with probable case to believe that the records contain evidence that pedophile priests have committed crimes by simply claiming a priest/parishioner privilege?? You couldn't be more wrong.

And as already discussed, medical records can already be retrieved WITHOUT a warrant where crime has taken place, and getting a search warrant for medical records happens thousands of times every day in the US.

We are talking about criminal matters here, not civil. There is a huge difference. And even lawyer/client records are not immune from search warrants, although special masters are used to sift through the materials seized.

Anonymous

That is because getting in a cell phone is like getting in your brain ... photos of personal moments, contacts, texts to a loved one ... DNA will tell you next to nothing about who you "are" ... digital information can also be copied and kept forever with little or no effort by law enforcement, processing someone's house takes a lot of time and resources so they have to really want the information and have a warrant to get it ... this problem is much larger and deals with metadata collection also.

Uncle Anonymous

The FBI has never shown itself to be a trustworthy custodian of American's Constitutional rights, so EVERYONE should "give a shit" about this. Do you SERIOUSLY think they're pondering how to respect citizen's rights and the Constitution, when what they really want is free access and total control?

gordon

The Government's position seems to be preventing anyone from owning a device they can't get into through a back door. They have fought for years to prevent access to encryption they can't break. I'm not a privacy freak, but this is a little much for me.

Anonymous

75 writs total in a population of more than 350 Million hardly seems excessive if they are used for legitimate legal purposes.

Personally, I thought Apple should have provided the contents of the dead San Bernardino shooters' phones. Not I'm not saying to provide them with a way to access the info - only provide the data.

Jay

Apple tried to provide the FBI with all the data they had. Incompetent investigators (kindest interpretation) changed the password and thus tied Apple's hands.

William

A lot of people are trying to make this some huge debate about privacy and preventing the government from snooping without your knowledge. That's an overreaction leftover from NSA revelations that somehow shocked some people. But this has absolutely nothing to do with privacy or snooping without your knowledge. SCOTUS has already said that the cops can't just dig into your smartphone without a warrant. The 4th Amendment has always allowed for reasonable court ordered searches. This is no different. The only difference is that it's a piece of technology that didn't exist too many years ago. As for using the All Writs Act to drive these orders, the fact that the original law is old, has no bearing on it still being valid. The AWA was always about filling in areas where the laws weren't specific enough. The AWA was written and passed right after the Bill of Rights. They did it because they knew that laws would not be able to keep up with every situation. In the early days, the laws of the country were just being created and a lot of holes existed, but the rapid advancement of technology today, still leaves gaps in the laws which the AWA may be used to fill. The AWA orders still need to be consistent with the surrounding laws and the order must be reasonable and justified.

This is not about privacy. No one has a right to privacy which allows them to commit crimes or evade the legal system.

Anonymous

I can't speak for "a lot of people", but my concerns are over security. Privacy is a secondary concern. The security against cybercriminals on my computing devices and on the networks I use is of paramount importance. In the San Bernadino case, the DOJ attempted to sabotage the security I rely on with the AWA in a way that would then permit them to sabotage the security on any device and any network. The implications for national security are huge, and quite frankly scary. The FBI/DOJ seem willing to trade away the security of our financial system, our infrastructure, and public safety for a limited increase in investigatory power. That is insane.

It's mostly the government and its apologists that are casting the controversy as one of privacy vs. security, which is not the correct framing. The correct frame is National Security vs FBI power. I'd prefer to have stronger personal and national security over giving the FBI additional power.

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