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.
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. (View the map here)
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.