OAKLAND, CA—Newly discovered court documents from two federal criminal cases in New York and California that remain otherwise sealed suggest that the Department of Justice (DOJ) is pursuing an unusual legal strategy to compel cellphone makers to assist investigations
In both cases, the seized phones—one of which is an iPhone 5S—are encrypted and cannot be cracked by federal authorities. Prosecutors have now invoked the All Writs Act, an 18th-century federal law that simply allows courts to issue a writ, or order, which compels a person or company to do something.
Some legal experts are concerned that these rarely made public examples of the lengths the government is willing to go in defeating encrypted phones raise new questions as to how far the government can compel a private company to aid a criminal investigation.
Two federal judges agree that the phone manufacturer in each case—one of which remains sealed, one of which is definitively Apple—should provide aid to the government.
Ars is publishing the documents in the California case for the first time in which a federal judge in Oakland specifically notes that "Apple is not required to attempt to decrypt, or otherwise enable law enforcement’s attempts to access any encrypted data."
The two orders were both handed down on October 31, 2014, about six weeks after Apple announced that it would be expanding encryption under iOS 8, which aims to render such a data handover to law enforcement useless. Last month, The Wall Street Journal reported that DOJ officials told Apple that it was "marketing to criminals" and that "a child will die" because of Apple’s security design choices.
Apple did not immediately respond to Ars’ request for comment.
Meet the “All Writs Act”
Alex Abdo, an attorney with the American Civil Liberties Union, wondered if the government could invoke the All Writs Act to "compel Master Lock to come to your house and break [a physical lock] open."
"That's kind of like the question of could the government compel your laptop maker to unlock your disk encryption?" he said. "And I think those are very complicated questions, and if so, then that's complicated constitutional questions whether the government can conscript them to be their agents. Then there's one further question: can the government use the All Writs Act to compel the installation of backdoors?"
But, if Apple really can’t decrypt the phone as it claims, the point is moot.
"Then that’s pretty much the end of it," Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, told Ars. "The writ doesn’t require Apple to do something that is impossible for it to do."
Andrew Crocker, a legal fellow also at the Electronic Frontier Foundation, pointed out on Twitter on Tuesday that back in 2005, a different New York magistrate refused to accept the government’s invocation of the All Writs Act to obtain real-time cell site data.
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