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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Stephan

People come up with more and more innovative ideas to make life easier by using cameras, microphones and all kind of sensors in our mobile devices. It's a huge market. If the government has access to all this data, we would basically live in a police state where we are recorded at all times. Since people don't want this, they would be reluctant to adopting this new technology which ultimately slows down innovation.
Also, it's not about giving access to data they have, which they do. Imagine a company who makes bulletproof glass. Now the government forces that company to develop a special bullet that can penetrate that glass using internally known weaknesses of their product. The glass is now worth much less and all the time put into developing the bullet proof glass was for nothing.

Anonymous

The question is not that the AWA is being used.

The question is HOW it's being used.

When a system, such as a mobile telephone, has an EXISTING method allowing the provider, vendor, or manufacturer, the ability to bypass security requirements, then using the AWA to compel them to do so is legitimate. The theory here is the same as the case where the telephone company had the equipment and used it for their own purposes, and was compelled to assist the government to also use it. If equipment has such a bypass, for example, to allow assistance after a lost pass phrase, then the government should be allowed to use that facility as well.

If, however, there is no such facility, the government should NOT be allowed to force its creation, as was attempted in the recent case. Nor should the government be allowed to force the discovery and exploitation of unknown errors which might exist through inadvertent act of the vendor, manufacturer or provider.

In addition, the government should be free, at its own expense and effort, to discover those inadvertent errors and make use of them to obtain access to the equipment; and should be free to obtain the same from third parties, as recently occurred.

While I applaud the ACLU's attempt to make public the scope of this problem, the ACLU does a disservice by failing to differentiate the cases where the equipment in question has such a bypass intentionally built-in, and those where no such bypass existed.

Anonymous

Privacy is just a nice, secondary effect.

Either =EVERYBODY= gets strong encryption and the security it brings or =NOBODY= gets that security. There is no middle ground.

You can NOT leave a house key under the mat for just the "good" guys at the FBI. Bad guys will find it, too.

Anonymous

youtube.com/watch?v=KCXTG_gp6rM

Anonymous

The Government/FBI played this up big-time as necessary for protecting us from terrorism, but as noted above, it seem in practice mostly about drug-related crimes...

Anonymous

"... the Fourth Amendment never contemplated that there should EVER be a place or thing free from REASONABLE search and seizure by the government ..."
But at what point is the "thing" so personal that it would be covered by the Fifth Amendment?

Dan Scanlan

I Found the Passcode!
by Dan Scanlan

I did it! I figured out the six digit passcode the Federal Bureau of Investigation has been seeking! The need to hassle Apple, Inc. and cause so much dismay and fear of the loss of privacy among the citizenry is gone.

Here’s how I did it: First I added J. Edgar Hoover’s age when he took over the “Radical Division” of the Justice Department — 24 — to the year he took over, 1917, the year the FBI was created, 1927, the number of years he ruled, 48, and the number of wiretaps he placed on the NAACP, 3000. Then I multiplied the numbers together and added the product.

Next, I added in the 3,165 FBI file pages on Martin Luther King, Jr., and his birth year, 1929. I multiplied them and added the product. Then I added the 17,000 pages the FBI has on American Indian activist and poet John Trudell, and 1979 for the year he burned a flag on the steps of FBI headquarters in Washington DC which was followed immediately by an arson fire at his home on a Nevada reservation that killed his three children, his wife and mother-in-law. The FBI refused to investigate, and I added 5 to the sum, multiplied those numbers together and added them to the total.

The FBI executed 21-year-old activist Fred Hampton in his bed in the middle of the night in Chicago, after providing FBI informant and provocateur William O’Neal with seco-barbitol to surreptitiously drug Hampton so he wouldn’t awaken during the raid, so I added the year, 1969, his age, and 5000 for the number who attended his funeral and 1,850,000 for the dollars the government had to pay in settlement for Hampton’s execution. Again I multiplied and added the product to the mix.

I added the 4,400 pages the FBI had on John Kennedy, his death date; the 1000 pages they had on Jackie Kennedy and her death date; and the 50 pages they had accumulated on Lee Harvey Oswald before others killed Kennedy. I added their product to the sum.

I added the year 1996 when Geronimo Pratt was released from prison after 27 years, eight of them in solitary confinement, and 4,500,000, the number of dollars the FBI and LAPD paid Pratt in a settlement for framing him for a crime he didn’t do.

To the mix I added 1975, the year the FBI framed Leonard Peltier for a crime it instigated when it sent 150 FBI agents onto Pine Ridge reservation with an anti-Indian terrorist group who called itself GOONS, and added the 140,000 pages of FBI files they withheld from Peltier’s defense attorneys. I added the 40 years he has spent in prison, multiplied the numbers and added the product.

The total grew to a 10-digit number, but I wasn’t done.

In 1990 the Forest Forever Initiative was on the California ballot and was winning. Then somebody, perhaps an FBI provocateur, placed a bomb under her car seat that exploded when a ball bearing rolled onto a switch as she rounded a corner in Oakland CA. The word “eco-terrorist” came into use by the FBI and she was accused of accidentally bombing herself. So I added the numbers 130 for the Proposition, 1990 for the year, and 4,400,000 for the number of dollars the FBI and the Oakland Police had to pay Judi and her fellow musician Darryl Cherney for falsely accusing them. Again the numbers were multiplied and their product added to the total. The FBI has never investigated the bombing. Too much exposure, I reckon.

I added in the number 1967 for the year the FBI created its COINTELPRO—BLACK HATE program, 113,000 for the number of non-profit social welfare groups whose confidential tax returns they seized from the IRS illegally, the 10,000 cases being reviewed because of false testimony from FBI agents and faked lab results by FBI evidence processors, 3,000,000,000, a number that approximates its budget, and 4,600,000, the number of dollars it paid to a scientist it falsely accused of executing the anthrax letters that went along with the fear-building 9/11 operation.

I selected a few more significant numbers, added, multiplied and added again and came up with a final total of 444,770,281,921. To keep this project on an unbiased, scientific plateau, I calculated the square root of the final total ‘cause that’s what scientists do, and, voila! — It generated the passcode the FBI needs so badly.

I give to you now: 666911

Swordmaker

When the opening of an iPhone is something that Apple can do as an ordinary process as part of their operation, then it is not an undue burden on Apple. iPhones from 2007 up until 2014 were pretty easy to unlock by Apple and something Apple did for their customers who forgot their passcodes, an ordinary part of their business practices. That meant it was not an undue burden for Apple to do it under an All Writs Act court order. After Apple hardened the encryption on their iOS devices and no longer had the keys to unlock them, Apple could no longer do so. It was no longer a standard practice for Apple to unlock iPhones for customers and that made it an undue hardship. Fast forward to iOS 8 and iPhones 5S and afterwards which are far more hardened than even the iPhone 5C of the San Bernardino terrorist case. These are encrypted far beyond that. The only way to get around that would be for Apple to actually RE-CODE iOS to make the devices less secure. THAT is undue hardship. . . and something that an All Writs Act order cannot compel.
In addition, an All Writs Act order cannot be apply to anything Congress has already addressed. Congress not only addressed but actually took action in the Communications Enforcement for Law Enforcement Act of 1994 (CALEA) which essentially prohibited the FBI and other law enforcement agencies and their agents from doing what the FBI was trying to get the Court to do for them as an agent. That, according to the New York Magistrate Judge was an impermissible use of the Courts and the All Writs Act. It also, in his opinion, was an attempt to legislate a change in CALEA.

Anonymous

Do we have a right to whispered conversation? All those people "going dark" by whispering; what's good old Feed Bag, Inc. to do?

Obviously, we must require that everyone have a microphone and transmitter embedded in their jaws so that the FBI, aided by a judicial search warrant, can monitor whispered conversations. "The fact that these people have been seen whispering frequently shows that they're trying hide something, Judge. They might be terrorists."

Then a few years later comes the mandatory brain implant because there are all those "dark brains" out there that the FBI simply must search. After all, if you've got nothing to hide you've got nothing to worry about, right? And if you don't have an implant, you must have something to hide. "Stands to reason, Judge."

darpa.mil/news-events/2015-01-19

The very notion that there is no repository of information that is off-limits to a search warrant and the government's prying eyes and ears knows no boundaries. It's been one big downhill slide since the Supreme Court first approved of the interception of electronic communications in Olmstead v. U.S., 277 U.S. 438 (1928), (alcohol smuggling conspiracy). And there is no end to that slide. Its depth stretches to infinity because the Court turned its back on the right to speak privately.

The legal distance betwixt encryption backdoors and mandatory brain-monitoring implants is vanishingly small. The issue is not so much what is legal as it is what should be legal?

I claim the right to whisper privately.

Larry Doyle

It's pretty obvious by now that the FBI, and James Comey in particular, lied about several aspects of the San Bernadino case (e.g. that it was only about one phone, that they had exhausted all remedies.) in order to damage Apple's reputation if they didn't comply. Then, once they were able to crack the phone with the help of an outside business (It's debatable that they did; and if so suspicious that the company that supposedly did it has been under contract with the FBI for years) they continued to punish Apple economically by suggesting their was a security flaw that made every iPhone vulnerable. I was wondering if, as an Apple stockholder, I would have standing to sue Comey under the Federal Torts Claim Act. And/or if a class action suit was possible. I rather doubt it could win, but discovery would uncover the depth of their deception.

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