In case you thought the recently and abruptly terminated fracas in San Bernardino was an isolated incident, the ACLU has put together a handy map of cases around the country where the All Writs Act has been used to justify an order to unlock a smartphone.
A total of 63 cases are shown; nine seek to compel Google to unlock a phone, and the rest are being brought against Apple. (Incidentally, this statistic in itself may yield interesting data when scrutinized: Is it because of iPhone population, or security standards, or lagging Android updates, or what?)
At least 70 cases exist where Apple or Google were ordered under All Writs to unlock a phone. That fact was revealed during a hearing on the topic in October when a federal prosecutor was detailing the frequency with which the companies complied. The ACLU dug around and turned up the 63 shown on the map, but that’s by no means the total count. Of course there are the dozen other cases in which Apple revealed it was involved, and more could be lurking that were filed privately.
“We definitely don’t think that this collection of cases is comprehensive — it’s just what we’ve been able to find by searching public court records,” wrote the ACLU’s Josh Bell in an email to TechCrunch. “There are almost certainly other ones that didn’t come up in our search, as well as cases that the government is keeping secret because they’re under seal.”
The orders relate to a variety of alleged crimes (often “war on drugs” related) and the phone involved is of varying importance; the ACLU has helpfully linked to the court order for each case when available, though no responses from the companies being ordered are included. In many cases Apple or Google may have dutifully complied without infringing on a user’s rights, if the phone was not encrypted and password-protected and the warrant was all in order.
This extensive and nationwide backlog of cases where All Writs has been used as a lever to pry open phones rather belies the feds’ assertion that it is a tactic of last resort. And even in the extreme case of that argument, when a backdoor into an encrypted device was supposedly the only way for the FBI to get at some critical data, it turns out the feds had a trump card in their pocket the whole time.
It’s enough to shake anyone’s faith in the government’s ability (or inclination) to successfully navigate the world of tech and encryption — if there was anyone left with faith to shake.