There have been some high-profile "uses" of All Writs in military courts in recent years, but the courts have argued that they did not have authority under All Writs.
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The All Writs Act of 1789 allows federal courts to issue writs, or court orders, that require third parties to assist in the execution of another court order, like a search warrant.
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The government had previously obtained many such orders against Apple and other companies under the All Writs Act, a 1789 statute that grants federal courts broad power to issue "necessary or appropriate" writs.
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So the All Writs Act is moot here, Apple contends.
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" In February, magistrate Judge Orenstein rejected the government's attempts to compel Apple's help under the All Writs Act, calling the argument "so expansive... as to cast doubt on the All Writs Act's constitutionality if adopted.
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One of the turning points for All Writs came in 1977.
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So the All Writs Act seems hard to defend in this case.
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Apple complied with previous All Writs Act orders for iOS 7 devices.
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The All Writs Act that the government cites was written in 1789.
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But the All Writs Act doesn't work if there's an alternative remedy.
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Most judges grant All Writs Act orders simply because prosecutors request them.
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The All Writs Act, in its current form, was passed in 1911.
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The All Writs Act is also being used in the case in California.
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Nor is it the first time Apple has been targeted with such Writs.
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In February, the original government request was made under the All Writs Act.
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"The All Writs Act cannot be stretched to fit this case," Apple said.
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A 227-year-old statute, …Read more ReadApple had a compelling case for why the All Writs Act was improperly used in San Bernardino, because All Writs cannot be used if it places an undue burden on a third party.
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According to a Justice Department brief filed last fall, Apple never objected to All Writs Act orders in those cases - nor, for that matter, to any All Writs Act order directing the company to help federal investigators break into iPhones.
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The FBI is citing the All Writs Acts of 1789 in its court arguments.
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The government is basing its authority in both cases on the All Writs Act.
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The government could come back and say that writs change over time with technology.
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Because New York is the perfect place — where women are CEO's, play writs, actresses, advocates.
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All Writs has already been used to compel Apple to help law enforcement unlock iPhones.
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The bad news for Apple: Only one judge has questioned All Writs in these cases.
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THAT'S SOMETHING FOR CONGRESS, NOT FOR THE COURTS TO DO -- USING THE ALL WRITS ACT.
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Anyhow, the real problem with the All Writs Act is that it's so very broad.
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The Founding Father's disdain for general warrants and writs of assistance birthed the Fourth Amendment.
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Racialized subjects seeking such writs advanced their claims through carefully crafted, often fictional familial narratives.
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The government can't go to court and mumble 'All Writs Act' to get whatever it wants.
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The FBI wants to search a phone, and it's using All Writs to make Apple help.
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But the government is still using the All Writs Act to corral tech companies, including Google.
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There are, of course, multiple cases involving iPhones and the All Writs Act across the country.
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Orenstein may be Apple's best hope to change the judicial momentum on All Writs Act orders.
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Writs of assistance worked much the same way, and were considered a type of general warrant.
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The writs were often used to harass people, to build cases against business owners, or both.
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Administrative subpoenas therefore lack the separation of powers found even in the Writs of Assistance regime.
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Orenstein also believes that the All Writs Act is too broad, and needs hard limits when applied.
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Depending on how the All Writs Act is interpreted by a judge, Apple may have to comply.
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If it does, there's a chance she could decide that All Writs won't fly in this case.
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It's also the first confirmation that the government has brought an All Writs Act case against Google.
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Yet that was how the Justice Department wanted him to read the All Writs Act, Orenstein said.
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The Justice Department also offered a robust defense of the All Writs Act, which dates to 1789.
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The basis of the Federal Bureau of Investigation's demand is a 1789 law called the All Writs Act.
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BUT YOU ARGUE THAT THE GOVERNMENT'S INTERPRETATION OF THE THE ALL WRITS ACT OVERREACHES A GOES TOO FAR.
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His plea prompted Orenstein to ask Apple and the government whether the All Writs Act dispute was moot.
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The All Writs Act (AWA) also does not allow the FBI to compel Apple to create new software.
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His legal actions — appeals, motions to vacate, petitions, writs of mandamus and habeas corpus — have all been denied.
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Some colonial judges even refused to issue these Writs when government officials refused to provide facts under oath.
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The FBI has resorted to using a federal statute — the All Writs Act — to try to force Apple's hand.
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" The All Writs Act is "a limited gap-filling statute," not "a mechanism for upending the separation of powers.
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Where the San Bernardino case rested on an exotic All Writs Act argument, the Wiretap Act is relatively straightforward.
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So the FBI invoked a 1789 law called the All Writs Act to force the phone company to comply.
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But Orenstein's doubts about the All Writs Act emboldened Apple to make a stand, even after Feng pleaded guilty.
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The judge found that the All Writs Act does not empower the executive and judicial branches to sidestep Congress.
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The prosecution was pressuring Apple with an 18th Century law called All Writs Act, reports The Wall Street Journal.
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Orenstein, of his own volition, refused to grant the government an All Writs Act order without briefing by Apple.
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"I think the All Writs Act litigation is most likely over," says Electronic Frontier Foundation staff attorney Nate Cardozo.
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It held that the Guantánamo detainees had a constitutional right to petition federal judges for writs of habeas corpus.
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Cardozo also noted that Congress could be convinced to change the All Writs Act to clear up that gray area.
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It relied on the All Writs Act, a law that can trace its origins to the first Congress in 1789.
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As Popular Mechanics notes, when All Writs is used in modern times, it is often to "effectuate" a search warrant.
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A United States Attorney recently said that the government used All Writs to compel Apple to unlock iPhones 70 times.
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The All Writs Act is a serious matter and the government shouldn't have used it without exploring all options first.
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In that case, the government is also using the All Writs Act to compel Apple to unlock the gunman's phone.
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Apple has begun a public fight against the government's use of the All Writs Act in the San Bernardino case.
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Judges considering contested All Writs Act requests in other courts may differ with Orenstein but they ought not ignore him.
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Jack Miles's book provides a very fine instance of the pleasures, and the hazards, of searching holy writs for goodness .
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Open-ended "writs of assistance" gave authorities licence to search anything they liked, infuriating the colonists and inspiring the Fourth Amendment.
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If the All Writs Act isn't the right vehicle, then the natural conclusion is that the question should go before Congress.
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Defense attorney Benjamin Brafman told "Closing Bell " on Tuesday that the government's citation of the All Writs Act isn't really valid.
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The All Writs Act, passed in 1789 (yes, a 200-year-old law,) is being used to force Apple to comply.
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Table amended to court documents showing other cases where Apple is fighting orders to unlock phones under the All Writs Act.
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The government was seeking to compel Apple to unlock the phone using the All Writs Act, an argument the court rejected.
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The writs provided customs officials the authority to enter any house or place of business in search of those smuggled goods.
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My money is on the likelihood that this case will come down to the judge's reading of the All Writs Act.
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In particular, they are expected to detail their legal arguments against the FBI's use of the century-old All Writs Act.
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The document makes a strong argument that there needs to be legislative ruling on the breadth of the All Writs Act.
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And it's citing a 227-year-old law, the All Writs Act of 1789, to try to force Apple to cooperate.
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While this case isn't exactly similar to the San Bernardino case, the government is using the same argument, the All Writs Act.
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To compel Apple to help execute a warrant, the judge cited the All Writs Act of 1789, enacted before there was electricity.
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All Writs has been used to compel tech companies to help the government decrypt devices, so this certainly isn't a huge leap.
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None of them gave much thought to how the All Writs Act applies to compelled assistance in bypassing the security of iPhones.
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Even worse, the legal authority came from the rarely invoked All Writs Act, which has little precedent for a compelled software case.
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Prosecutors previously said they have sought — and Apple has complied with — at least 70 orders under the All Writs Act since 2008.
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The All Writs Act broadly says that courts can require actions to comply with their orders when not covered by existing law.
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The DOJ cited the same statute—the All Writs Act of 1789—that it attempted to use in the San Bernardino case.
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Patients' lawyers can also file writs of habeas corpus or petitions for restoration of sanity to have their cases heard in court.
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Prosecutors have said that since 2008, Apple has complied with 70 such court orders based on the All Writs Act without objection.
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Williams&apos appeals lawyers, from the state Office of Capital and Forensic Writs, did not immediately reply to a phone message seeking comment.
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And once the Supreme Court permitted All Writs as a way to compel a pen register, lower courts used it in similar ways.
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Now that the FBI has found a successful alternative to Apple's intervention, the All Writs Act doesn't work, making the original request invalid.
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When the San Bernardino fight began in February, there was very little established case law interpreting the All Writs Act and US v.
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He told "Squawk on the Street" tech companies need clarity in the law, and going back to old writs is not the answer.
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But as the case heads to appeals court, it may settle any lingering legal questions about the power of the All Writs Act.
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But in the Feng case, Judge Orenstein refused to grant the government's request for an All Writs Act order without briefing from Apple.
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The government has been using the All Writs Act, a legal statute that dates to 1789, as a key underpinning of its case.
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The government's view of the All Writs Act is so expansive as to cast doubt on its constitutionality if adopted, Judge Orenstein wrote.
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It's all about whether the All Writs Act of 1789 is an appropriate legal tool for forcing tech companies to assist the government.
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The Writs of Assistance targeted colonial merchants, but were at least issued by judges who could determine that legitimate laws were being enforced.
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"We feel the best way forward would be for the government to withdraw its demands under the All Writs Act," the company wrote.
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And it gets its digs in on this implementation of All Writs as well, for the record: While Apple strongly supports, and will continue to support, the efforts of law enforcement in pursuing criminals, the government's sweeping interpretation of the All Writs Act is plainly incorrect and provides no limit to the orders the government could obtain in the future.
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The All Writs Act does not support such sweeping use of judicial power, and the First and Fifth Amendments to the Constitution forbid it.
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NORMALLY, THE ALL WRITS ACT HAS BEEN USED TO ALLOW COURTS TO COMPEL PRODUCTION AND SUPPLYING OF INFORMATION THAT ALREADY EXISTS TO THE GOVERNMENT.
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So in order to fight back, Apple has to attack the basis of the All Writs order, and say that this request is illegal.
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But, overseeing the run-of-the-mill drug case involving Feng, Orenstein first raised doubts about whether the All Writs Act applied to Apple.
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The motion portrays that legislative fight as a specific refusal to grant the powers the FBI is now seeking through the All Writs Act.
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"This argument really runs parallel to the All Writs Act argument—what the government is proposing to do is an unreasonable burden," Cardozo said.
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The company objected to these All Writs Act orders in order to see if the Department of Justice would follow up with other arguments.
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The reset of the iCloud account password does not impact Apple's ability to assist with the the court order under the All Writs Act.
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As Apple and the government were in the midst of briefing the All Writs Act question in the Feng case, Jun Feng pleaded guilty.
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The colonists reacted strongly to the writs, since the government's agents did not need any evidence the home or business owner possessed smuggled goods.
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After federal prosecutors requested the order, Judge Orenstein argued in an 11-page memo last October that prosecutors were misusing the All Writs Act.
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Chart showing other cases in which the government is using the All Writs Act to compel Apple to assist it in extracting data from iPhones.
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One of the provisions for a motion to be granted under the All Writs Act is that compliance not be "unreasonably burdensome" to the company.
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The company makes several arguments, including one that the government can't use the All Writs Act to give law enforcement powers that Congress expressly withheld.
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But the core of the filing itself rests on the limits of the FBI's request and the limitations of the All Writs Act in general.
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In each example, prosecutors have attempted to use the All Writs Act to force Apple to bypass the device's passcode in order to extract data.
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To force Apple to comply, the DOJ is relying on the All Writs Act, which was signed into law by President George Washington in 1789.
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If a restrictive software license makes a tech company vulnerable to the All Writs Act, then no tech company—and no tech user—can escape.
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In a brief, the company reiterated its earlier arguments that the 200-plus-year-old All Writs Act cannot be "stretched to fit" the case.
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"We share the Judge's concern that misuse of the All Writs Act would start us down a slippery slope that threatens everyone's safety and privacy."
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Goodlatte asked Comey point-blank about the All Writs Act, placing the hearing's focus squarely on Orenstein's New York case and the San Bernardino case.
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We share the Judge's concern that misuse of the All Writs Act would start us down a slippery slope that threatens everyone's safety and privacy.
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At issue is the government's attempt to use an 18th century law called the All Writs Act to compel Apple to disable the security feature.
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We are back in the usual arena of communal politics in which notables bandy writs of excommunication as a means of confirming their own authority.
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Magistrate Judge Orenstein's opinion in the New York case fleshes out the primary argument that Apple is using in its San Bernardino case: that the All Writs Act can't be used to force Apple to assist the government, because another law, the Communications Assistance for Law Enforcement Act (CALEA) is a "comprehensive statutory scheme" that excludes the use of the All Writs Act in this area.
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The All Writs Act of 1789 is a catchall rule of sorts that allows judges to compel an action so long as it's legal and necessary.
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Yet Cuban said that based on the outdated All Writs Act, "it would be a disaster if they [Apple] agreed to comply" with the FBI's inquiry.
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Just like with this drug case, the DOJ is using the All Writs Act in an attempt to carry out a search warrant for the phone.
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The All Writs Act is a 1789 "gap-filling" statute that authorizes federal courts to issue miscellaneous insignificant orders that aren't explicitly addressed by other statutes.
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To be sure, Apple's First Amendment claims are secondary to its extensive criticism of the All Writs Act, the law at the crux of the case.
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"The government's position that the All Writs Act can be used whenever a statute does not expressly prohibit an action is untenable," attorney Marc Zwillinger wrote.
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He said that prosecutors were taking too broad a ruling of a 1789 statute known as the All Writs Act in seeking to secure Apple's cooperation.
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"The change has come in Apple's recent decision to reverse its long-standing cooperation in complying with All Writs Act orders," department spokesperson Melanie Newman said.
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Houston's plan is to wait until he has been hospitalized for at least five years before he bothers to file any writs or petitions for release.
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"This court has twice denied petitions for writs of certiorari that raised essentially the same arguments as this one," the Justice Department says in its brief.
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The ruling rejects the government's argument that the All Writs Act, a law from 1789, can be used to force Apple to help access a suspect's iPhone.
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"It is not likely that the parliament will resume before the end of June because we have to wait for the writs to be returned," he added.
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In cases all over the country, the Department of Justice has been testing out the All Writs Act to force Apple to assist them with various iPhones.
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Apple didn't protest any of its All Writs Act orders until Orenstein pushed the issue in October, and then again in the San Bernardino case in February.
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There's been a lot of discussion of the All Writs Act, which is a piece of law that dates to the founding of the country in 1789.
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" The government is pinning its order on the All Writs Act of 1789, which Cuban calls a "catch all for anything for which there is no law.
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The governor general is commander in chief of the armed forces, appoints ambassadors ministers and judges, gives royal assent to legislation and issues writs to call elections.
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The All Writs Act (AWA) is one of the laws the federal court has cited in order to compel Apple to create custom firmware for its phones.
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The All Writs Act is also being invoked in the fight over an iPhone in the San Bernardino shooting, which has publicly pitted Apple against the government.
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Apple had previously agreed to help open up the iPhone in the drug case, and has complied with past All Writs Act orders, the Justice Department said.
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Orenstein has been using this case as an opportunity to rule on whether the All Writs Act allows private companies to be 'automatically conscripted' in government investigations.
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In both cases, the government relies on the All Writs Act, a broad 1789 law which enables judges to require actions necessary to enforce their own orders.
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The government defends its use of the All Writs Act, saying the U.S. Supreme Court vetted its use to compel third parties to assist in gathering evidence.
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Both cases hinge on a 227-year-old statute called the All Writs Act, which serves, essentially, as a last resort for federal judges to enforce the law.
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The Supreme Court has said, 'Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act that is controlling.
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Page 21, line 222: Forcing Apple to create new software that degrades its security features is unprecedented and unlike any burden ever imposed under the All Writs Act.
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Her ruling was based on the All Writs Act of 1789, which is used to require people or businesses not involved in a case to execute court orders.
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This does not mean a court could use All Writs as justification to create an order that goes against the law or has nothing to do with it.
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The American Civil Liberties Union just released an interactive map of 63 cases where either Apple or Google received All Writs Act orders to assist in unlocking phones.
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But if these are the second Crypto Wars, then Orenstein is trying to stir up a second magistrates' revolt against the overbroad use of the All Writs Act.
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The government had staked its authority to compel Apple to cooperate on the All Writs Act, which was instituted in 1789 and has been amended several times. Rep.
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The government has vigorously defended the legality order, arguing investigators have no other way to access the phone, and such compulsion is justified by the All Writs Act.
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According to the Justice Department's court filings in Brooklyn, Apple has cooperated with All Writs Act orders more than 70 times, though those cases involved older model iPhones.
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Federal prosecutors have used the All Writs Act to request Apple's help to access suspects' devices at least 15 times since October 2015, newly unsealed court records show.
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The orders, coming under the All Writs Act, deal with phones ranging from the iPhone 85033 to the iPhone 6, running various operating systems, according to The Intercept.
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In the Farook case, prosecutors are portraying the Feng case as an outlier, an singular exception to the government's successful record of obtaining All Writs Act decryption orders.
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Apple has complied with previous demands under the All Writs Act at least 70 times, a government lawyer claimed last year in a similar case in New York.
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Apple had argued that the court order violated the company's First and Fifth Amendment rights, and said the government's request oversteps a law called the All Writs Act.
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We now know there are at least 23 occasions where the US government has used the All Writs Act, thanks to unsealed court documents compiled by the ACLU.
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This matches with a list of pending All Writs cases previously identified by Apple, which includes a case in Massachusetts involving an iPhone 6 Plus running iOS 9.1.
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That was an important ruling because the law — the centuries-old All Writs Act — is the same one the FBI initially tried to use in the San Bernardino case.
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The government is so intent on forcing Apple's hand that in each case the Justice Department has invoked the 200-year-old law All Writs Act to do it.
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"There's a significant legal question as to whether the All Writs Act can be used to order a company to create something that may not presently exist," Zweiback said.
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What the Founding Fathers Had to Say About the Crypto WarsThe All Writs Act was passed during the First Congress, which included many of the drafters of the Constitution.
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The Supreme Court ruled in favor of the government when it used All Writs to compel a telecom company to help it conduct surveillance to make a racketeering sting.
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Image: Alex CranzThe government used the All Writs Act in a failed attempt to make Apple write software that would weaken its security to help unlock a seized iPhone.
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Screenshot from one of the Google court cases The All Writs Act was not intended to become a go-to statute for making tech companies comply to government demands.
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Law enforcement used the All Writs Act to compel New York Telephone Co. to install a pen register, a mechanical device that records the numbers dialed in the phone.
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The Supreme Court held that this was an allowed use of the All Writs Act, and New York Telephone Company was forced to help law enforcement surveil its customers.
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LIPTON: AND TED, AT THE HEART OF THIS CASE IS THE ALL WRITS ACT, THIS CENTURIES' OLD LAW THAT HAS BEEN USED TO COMPEL COMPANIES TO ASSIST THE GOVERNMENT.
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The All Writs Act, a 227-year-old law that was used to compel Apple's cooperation in both cases, requires that the government first exhaust all other possible methods.
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Because there are no other legal frameworks to use, the government is citing an ancient and obscure law called the All Writs Act, which was originally passed in 1789.
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Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.
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In its filing on Monday, the Justice Department cited the California decision as evidence that the All Writs Act has been used to compel Apple to unlock the phones.
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The American Civil Liberties Union (ACLU) found 63 cases where the government had used the 1789 All Writs Act to ask Apple and Google help unlock data on phones.
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It has been filing writs of habeas corpus on behalf on wildlife, such as chimpanzees and elephants, to request that they be moved from captivity to an animal sanctuary.
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The company has argued from the beginning that the use of the All Writs Act in this case is governmental overreach, an assessment largely backed by the technology industry.
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Apple will also insist that the government is improperly using the 1789 All Writs Act to compel the company to help law enforcement bypass security features on the iPhone.
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According to Apple's lawyers, this means Apple's help was no longer "necessary"—a condition under All Writs Act precedent—thus making the government's request invalid in the first place.
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These colonial Writs required returns before judicial officers, and government searchers were subject to legislative penalties and even private lawsuits for exceeding the scope of the judicially authorized searches.
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The All Writs Act does not authorize the government to make an end-run around this important public debate and our nation's legislative processes... This extraordinary and unprecedented effort to compel a private company to become the government's investigative arm not only has no legal basis under the All Writs Act or any other law, but threatens the core principles of privacy, security, and transparency that underlie the fabric of the Internet.
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The case is similar to the one involving Apple because the court issued the order under the All Writs Act to compel assistance in furthering an investigation of possible wrongdoing.
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Still, it may be difficult for the government in other All Writs Act cases to argue that only Apple can provide it with access to a locked iPhone, Vernick added.
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"In the apple case, the Justice Department is asking the magistrate to apply language in the All Writs Act that was passed by congress and written in 1911," Smith continued.
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Judge James Orenstein rejected the government's interpretation of the All Writs Act, ruling that it cannot compel Apple to create software that will weaken its security protections using that statute.
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What the Founding Fathers Had to Say About the Crypto Wars The All Writs Act was passed during the First Congress, which included many of the drafters of the Constitution.
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New York Telephone The All Writs Act has been around for over two hundred years, but there are only a handful of binding cases that are relevant to Apple's situation.
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In a 50-page ruling, Magistrate Judge Orenstein found that the All Writs Act did not justify the government's request, and denied the government's request to legally compel Apple's help.
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The FBI has cited the All Writs Act, an obscure, centuries-old law, as part of its argument for why Apple must comply with unlocking terror suspect Syed Farook's iPhone.
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Generally, it argues once again that the agency is using an overly broad interpretation of the All Writs Act to compel the company's assistance in extracting data from the phone.
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In a ruling last fall, Orenstein said there were important differences between Apple and the telephone company in the 1977 Supreme Court case underlying the government's All Writs Act argument.
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The government is attempting to use an 18th-century law called the All Writs Act to compel Apple to disable a key security feature on Farook's county-owned work phone.
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The discretion of searchers under the administrative subpoena regime is therefore broader and in many ways more dangerous to the Fourth Amendment right of security than the Writs of Assistance.
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In fact, Apple has complied with previous demands under the All Writs Act at least 70 times, a government lawyer claimed last year in a similar case in New York.
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Judge James Orenstein ruled Monday that the 200-plus-year-old All Writs Act can't be used to force Apple to unlock the phone in a 2014 case involving drug trafficking.
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Based on its previous statements and an amicus brief supporting Apple, however, Google will object if the government uses the All Writs Act to force it into weakening its own security.
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If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone's device to capture their data.
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The Orenstein decision "adds some real strength to this argument that the All Writs Act is not the right vehicle for this, even though the facts are different," Crocker told me.
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"We've never seen an All Writs Act order that would force a company to not only do an amazing amount of work, but also to sacrifice its trust model," Cardozo said.
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According to those scholars, Apple has a persuasive defense pointing to a Supreme Court interpretation of The All Writs Act, the 1789 law the FBI is using to compel Apple's cooperation.
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In addition to the aforementioned order, Apple has received other All Writs Act orders during the pendency of this case, certain details of which are set forth in the table below.
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In at least some cases, the government wants to use an 85033th-century law called the All Writs Act to compel Apple to disable a key security feature, the report said.
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In this case, as in California, the Justice Department sought to use an 18th century law called the All Writs Act to compel Apple to help it break into the device.
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Judge Orenstein said the government was inflating its authority by using the All Writs Act to force Apple to extract data from an iPhone seized in connection with a drug case.
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The government argues that the All Writs Act, a broad 1789 law which enables judges to require actions necessary to enforce their own orders, compels Apple to comply with its request.
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Not only is the government's order based on a specious interpretation of the All Writs Act of 1789, argues Apple, but it's also a violation of the company's First Amendment rights.
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A spokesman for Google, a unit of Alphabet Inc, declined to say how frequently it has cooperated with All Writs Act requests or orders, and how often it has contested them.
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As Apple noted, the F.B.I., instead of asking Congress to pass legislation resolving the encryption fight, has proposed what appears to be a novel reading of the All Writs Act of 1789.
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He scathingly added that the government had come seeking an All Writs Act order exactly because they knew they wouldn't be able to pass the right legislation in Congress: What happens next?
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According to Comey, he didn't bother to read it before testifying about this case...where the government is attempting to use All Writs to force Apple to assist in unlocking an iPhone.
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And if the FBI wins its legal fight with Apple, it could establish a precedent that opens the door to the use of the All Writs Act for other types of surveillance.
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Apple will need to make its case why the FBI's request to create a special version of iOS is burdensome and taxes the limits of the 200-year-old All Writs Act.
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" The government is relying on the 1789 All Writs Act, which allows federal judges to compel others to help the government perform its duties so long as requests are not "unduly burdensome.
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Judge Orenstein, in his 50-page ruling on Monday, took particular aim at a 1789 statute called the All Writs Act that underlies many government requests for extracting data from tech companies.
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After writs were issued in August against several illegal companies, a panic appeared in Exchange Alley; the collapse of market confidence doomed both the mini-bubbles and the South Sea Company itself.
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Mr. Smith in particular took aim at the All Writs Act, which was passed in its current form in 1911, as being too antiquated to be used now in situations with modern technology.
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Initially, Apple agreed to a formal order to help the Justice Department gain access to Mr. Feng's phone, but Judge Orenstein balked, questioning whether the All Writs Act could be used that way.
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In 2014, for instance, Judge Gabriel Gorenstein used All Writs to compel an unnamed tech company to unlock a phone, and cited that 1977 Supreme Court case while outlining why it made sense.
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Yet it also cites the ongoing San Bernardino as an example of the All Writs Act being used to force Apple's hand to unlock phones, which some may see as a little premature.
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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.
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The Wall Street Journal reported Tuesday that there are at least a dozen cases where the All Writs Act is being used by prosecutors to compel Apple to help them unlock iPhone devices.
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Apple says the Founders would be "appalled" Today's filing focuses on the government's use of the All Writs Act, which it argues can be used to compel Apple to help in its investigation.
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The All Writs Act only applies where there's no preexisting statute that addresses the situation — but we've added a lot of new statutes in the 39 years since New York Telephone was argued.
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The 85033 All Writs Act allows federal judges to compel others to help the government perform its duties, so long as requests are "agreeable to the usages and principles of law," Orenstein writes.
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The San Bernardino and New York cases sought to secure Apple's cooperation under the All Writs Act, a 1789 law that allows judges to order compliance with search warrants and other court orders.
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Going forward, the government can continue relying on the All Writs Act in the hopes that, eventually, one of its cases will stick, or it can wait for a legislative solution from Congress.
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The Justice Department argues that the All Writs Act of 1789 gives courts the power to order businesses and individuals to assist law enforcement even if they are not involved in a crime.
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"One of the factors that the court is going to analyze under the All Writs Act is whether there were alternative means for getting the information," EFF staff attorney Nate Cardozo told Motherboard.
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Apple said the FBI's use of the 200-year-old All Writs Act would be "unduly burdensome" by putting potentially every other iPhone at risk if the rewritten software leaked or was stolen.
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In these regards, administrative subpoenas are worse than the general warrants banned by the Fourth Amendment after America's colonial experience with the Writs of Assistance, which in fact helped foster the American Revolution.
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The revelations show that many agencies have been using the All Writs Act, a 15 law that the government says allows it to compel third party companies to help it in criminal investigations.
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That was important because the law the FBI invoked, called the All Writs Act, requires the FBI to make reasonable self-help efforts before forcing a company like Apple to help its investigation.
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Namely, that this is absolutely not just about a 'single device', but instead whether the All Writs Act can be used to force compliance by private companies: Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come.
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"The reset of the iCloud account password does not impact Apple's ability to assist with the the court order under the All Writs Act," an FBI spokesperson said in a statement provided to ArsTechnica.
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While the All Writs Act gives courts a broad and flexible authority over things that aren't explicitly covered by statute, "where a statute specifically addresses the particular issue at hand" the statute is controlling.
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The government frames the iPhone's design capabilities as "obstruction" of a search warrant, and uses the iOS software licensing agreement to argue that Apple is vulnerable to an order under the All Writs Act.
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When the next All Writs Act request comes to Apple or WhatsApp or Telegram, it will be much easier to claim that law enforcement simply hasn't exhausted all its options for cracking the security.
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In New York, Apple argued that the Communications Assistance for Law Enforcement Act, which requires crypto backdoors for telephone companies but not for "information providers," should supersede the All Writs Act in this instance.
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In both New York and California, it is magistrate judges who are deciding whether the federal government is within its rights to use the All Writs Act to compel Apple to unlock an iPhone.
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The companies backing Apple largely echo the iPhone maker's main argument, that the 1789 All Writs Act at the heart of the government's case cannot be used to force companies to create new technology.
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In both the San Bernardino case and the Boston case, the government sought to use an 18th-century law called the All Writs Act to compel Apple to help unlock the device in question.
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Since October, Apple has informed investigators wielding All Writs Act orders that it has "suspended all iOS data extractions" and will not retain possession of phones criminal investigators have asked the company to decrypt.
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In an order yesterday, Orenstein asked Apple's lawyers to provide him with details about all of the cases, including where the government asked for writs, how Apple responded and whether usable data was recovered.
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" Critics of the FBI's position have repeatedly argued that forcing a private company to manufacture a deliberately flawed product is an Orwellian overreach under All Writs, which requires that requests not be "unduly burdensome.
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Even though the phones are different, the cases turn on the same legal reasoning: the government claims that under the All Writs Act, it can compel Apple to help them to break their own phones.
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The executives said that the FBI is employing the esoteric All Writs Act beyond its intended use, and that no court has ever authorized to government a power such as what is currently in contention.
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Tech people love to cite the dates of laws to make them seen antiquated and ancient, but the All Writs Act is pretty basic stuff, and it's not like, on some dusty scroll or something.
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As head of the Justice Department, Sessions would have the power to prosecute companies that don't cooperate with law enforcement demands under the All Writs Act, the same mechanism used against Apple earlier this year.
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Apple also repeated its argument that the government was overstepping its bounds by seeking to force the company to break into the iPhone using a statute called the All Writs Act, which dates to 1789.
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On the strong argument side, the Justice Department has been unfairly mocked by some about the fact that it's relying on a law from the 1700s — the All Writs Act — to justify opening this phone.
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Essentially, Apple's main argument is that the All Writs Act, which is used when there is a gap in the law, doesn't permit the court to force Apple to write new code for the government.
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Lawmakers had actually departed Ottawa in June, but Payette formally shut down Parliament and issued writs of election for each electoral district, giving MPs and their challengers the green light to hit the campaign trail.
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The legal basis for requesting this assistance is the All Writs Act of 1789, an 18th century law that is becoming a favorite for government agencies trying to get tech companies to turn over user data.
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Two: the government is relying on the All Writs Act—a 1789 statute that gives courts the general authority to issues orders not specified by the law—to compel Apple to extract data from the phone.
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He is the first federal judge to analyze the reach of the All Writs Act in the age of the smartphone, yet he roots his discussion not in technological terms but in fundamental U.S. constitutional principles.
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"Under the All Writs Act and Rule 23, the district court had authority to enjoin behavior by third parties to the extent necessary to effectuate and preserve the integrity of its prior orders," the opinion said.
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Any iPhone would then be at the whims of the DoJ's desire to access it and its ability to utilize the same broad All Writs Act applications it used with Apple to peek wherever it wanted.
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Yet both cases rely on a two-century old law called the All Writs Act, and are thought to be test cases of the government's ability to force tech companies to break into their users' devices.
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The other cases don't involve terror charges, the Journal's sources say, but prosecutors involved have also sought to use the same 220-year-old law — the All Writs Act of 1789 — to access the phones in question.
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Help unlocking an iPhone might only be the first concession In his open letter, Cook notes that the FBI's legal basis for their demand comes from a federal statue from 1789 known as the All Writs Act.
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The filing from Apple comes as the FBI has continued to fight a February ruling on the New York case that found the All Writs Act could not be used to force Apple to assist the agency.
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The All Writs Act of 1789 that the government wants a judge to tap to force Apple's hand serves essentially as a last resort for judges to compel an action so long as it's legal and necessary.
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The ruling is clear and concise, making the case that the All Writs Act cannot be stretched to cover the blanket license to compel private companies to extract customer data from locked devices that the government wants.
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But while this doesn't guarantee victory for Apple in the San Bernardino case, it may have a major impact on how the All Writs Act gets used, as attorney and Brookings Fellow Susan Hennessey pointed out on Twitter.
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The order was issued on an obscure law known as the All Writs Act, which the FBI interpreted as a way to ask a court to order a company to do something not otherwise covered by the law.
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Here are some of the lowlights from the three-hour session:Remember that important court ruling in favor of Apple yesterday, where a judge denied that the government can use All Writs to force Apple to unlock an iPhone?
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Apple, for its part, argues that the FBI is using the All Writs Act, a 200-year-old law, too broadly in trying to get it to write code that would make the security of its devices worse.
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BUT FROM OUR PERSPECTIVE, WE'RE IN THE NINTH CIRCUIT COURT OF APPEALS, WHICH HAS VERY STRONG CASE AUTHORITY THAT SUPPORTS OUR POSITION, BOTH IN TERMS OF THE REACH OF THE ALL WRITS ACT OR THE LACK OF REACH.
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"The government's extraordinary request eviscerates the purpose of the All Writs Act, and unnecessarily compromises the proprietary intellectual property of a private company that has not been implicated, in any way, with the crime under investigation," Lavabit adds.
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So instead, the FBI has used the All Writs Act law from 1789 to convince a federal judge to force Apple to write a special version of iOS to unlock the iPhone of a bad guy in 2016.
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"Apple has extracted data from iPhones like this one pursuant to All Writs orders numerous times, including as a result of orders issued in the Eastern District of New York," the Justice Department said in its Monday filing.
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Apple believes this too, arguing in a testy statement that if the government succeeds in compelling it to write software under All Writs, it will be able to force companies and individuals to do all sorts of things.
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"My guess is that Apple will say CALEA supersedes the All Writs Act, and the court will say 'it was a nice try,' by the government, but it's not going to work in this case," she told me.
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In both cases, the government has attempted to use an 18th-century law known as the All Writs Act to force Apple to write a piece of software that would disable a key security feature on the phone.
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At the heart of Apple's legal defense is an argument that the Justice Department is inappropriately taking advantage of an 18th-century law called the All Writs Act to force Apple to help it unlock the shooter's phone.
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As Katie Benner reports, the All Writs Act is also at the center of Apple's recent fight with the F.B.I. over a phone used by one of the attackers in last year's mass shooting in San Bernardino, Calif.
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In 2016, the United States tried to use the All Writs Act, which dates back to 1789, to force Apple to create a "back door" that would give the FBI access to the San Bernardino shooter's locked phone.
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His ruling echoed many of the arguments that Apple has made in the San Bernardino case, particularly his finding that a 1789 law called the All Writs Act cannot be used to force Apple to open the phone.
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"We soon had a staff of more than 70 people and began to establish legal strategies, mainly habeas corpus writs," Mr. Zalaquett said in an interview posted on the website of the organization Robert F. Kennedy Human Rights.
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"In two and a half years, the solicitor general has applied for at least 20 stays; has sought certiorari before judgment in 10 different cases, and has sought extraordinary writs against three different district court judges," Vladeck writes.
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Nothing. Apple argues that the venerable All Writs Act wasn't created to provide the courts "free-wheeling authority" to exercise new powers not afforded the courts by Congress — such as conscripting Apple to help the government hack iPhones.
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The company said that the order violated its First Amendment and Fifth Amendment rights and exceeded the powers granted to the government in the All Writs Act, the 1789 law that the court had used to compel Apple's assistance.
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In the past, he has been skeptical of the way the government uses an 18th-century law — the All Writs Act — that the Justice Department is now claiming gives it the authority to force Apple to unlock the phones.
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In that case, as in San Bernardino, the government argued that the All Writs Act of 1789, a law that's as broadly open to interpretation as its age might suggest, granted it the authority to make such a request.
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The motion argues the government is misusing the All Writs Act, a 1789 statute that can be used to compel third parties to cooperate with investigations and is violating the company's First and Fifth Amendment rights in the process.
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As a part of its Fifth Amendment defense, Apple argues that being forced to create a version of its software that weakens security is a gross expansion of the All Writs Act and is indeed counter to the Constitution.
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In one of the new filings related to the Brooklyn case, Apple included a table of nine cases in which requests for All Writs Act orders — compelling the company to assist in unlocking phones — have been pending since Oct.
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"It's important that a judge for the first time recognizes the All Writs Act doesn't provide the lawful authority the government has been claiming in these cases," said Esha Bhandari, a lawyer with the A.C.L.U., which supports Apple's position.
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A federal appeals court on Wednesday overturned the dismissal of potential class action against debt collectors Midland Funding, LVNV and their lawyers over the amount of post-judgment interest they listed on applications for writs of garnishment in Michigan.
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Last October, a federal judge in New York said the government was overstepping its boundaries by using a centuries-old law, the All Writs Act, as the basis for its request that Apple open an iPhone for a drug investigation.
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It first suggests that the Communications Assistance for Law Enforcement Act, which governs crypto backdoors for telecom companies, should supersede the All Writs Act, which allows courts to compel third parties to assist in criminal cases unless covered by another law.
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So, a Constitution that was -- not only thought it was important to protect privacy, but John Adams said that James Otis&apos arguments against general warrants or writs of assistance, he said it was the spark that led to the revolution.
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The opinion is a thorough and surgical takedown of the government's position on the All Writs Act, one that combs through all the relevant Supreme Court precedent, analyzes its statutory construction, and even opines on what the Founding Fathers intended.
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In other words, the draft bill is an encryption-specific version of the All Writs Act, the controversial 1789 statute that the US government invoked to force Apple to build software capable of hacking into the San Bernardino shooter's iPhone.
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The government sought to unlock an iPhone used in a methamphetamine smuggling operation through the powers granted by the All Writs Act, but was vigorously rejected by Magistrate Judge Orenstein in a 50-page decision handed down on February 29th.
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As cited in the government's motion to compel, the All Writs Act gives the court the power "to order a third party to provide non-burdensome technical assistance to law enforcement officials" as long as there's a valid warrant involved.
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In an unexpectedly adversarial hearing on Tuesday, the members of the House Judiciary Committee grilled FBI Director James Comey on encryption backdoors, privacy, the All Writs Act, and even highly technical details about the iPhone 5c, for over an hour.
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"Only more recently, in light of the public attention surrounding an All Writs Act order issued in connection with the investigation into the shootings in San Bernardino, California, has Apple indicated that it will seek judicial review," the letter said.
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Under such murky circumstances, "in which Congress is plainly aware of the lack of statutory authority and has thus far failed either to create or reject it," Orenstein said, it is "far from obvious" that the All Writs Act applies.
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In that case, a magistrate rejected attempts by the Justice Department to force Apple to help unlock an iPhone in a routine drug case, saying that the government was using the All Writs Act so broadly that it might be unconstitutional.
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This antecedent process for writs to search protects Americans' security against unreasonable government intrusions and trespasses, and should naturally apply to digital "papers," which include emails, photographs, and other electronically stored documents and records of individuals, businesses and nonprofit organizations.
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They may be enforced in court under threat of contempt and other penalties, and courts give Chevron deference to these writs, meaning the issuers of them may in large degree determine the scope of the laws they claim to be enforcing.
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Both cases hinge on the same question: Whether the courts can use the venerable All Writs Act to order a third party — in this case Apple — to bypass the security on its devices against its will to further a government investigation.
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The federal government has asked Google for technical assistance to help it break into a locked Android smartphone using the All Writs Act at least nine times, according to publicly available court documents discovered by the American Civil Liberties Union.
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The government disagrees with Apple's arguments challenging the 200-year-old All Writs Act as "archaic," saying the court order would lead to a "police state" and criticizing the FBI's investigation as "shoddy" (though Comey openly admitted the FBI screwed up).
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"We are taking this action in order to better understand how government authorities have attempted to use the All Writs Act of 1789 to defeat 21st-century technology," Matthew Segal, legal director of the ACLU of Massachusetts, said in a statement.
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The 50-page order absolved Apple of any obligation to assist the government in this case — but Orenstein also concluded that the All Writs Act, an 18th-century law now being used to compel tech companies to unlock devices, is legally insufficient to be used in that manner: Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come.
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But national security lawyers say the Brooklyn case remains important, because Judge Orenstein's decision is expected to be the first to offer a broad examination of the government's authority under the All Writs Act to force Apple to unlock passcode-protected iPhones.
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That was fifty years before the telegraph originated and almost a century before Alexander Graham Bell made the first telephone call... Now, 200 years later, the government endeavors to reinterpret the All Writs Act as an open-ended source of new powers.
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When it comes to the central question of whether the government can compel Apple or other private companies to assist it with accessing data on locked devices under the All Writs Act, the FBI's chosen weapon in San Bernardino— that has not changed.
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Conyers also questioned the government's use of the All Writs Act to compel Apple, referencing the court order issued yesterday in a New York-based drug case that rejected use of the same act to compel Apple to unlock a suspect's phone.
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The high court said then that the All Writs Act, a law from 1789, authorized the order, and the scope of that ruling is expected to be a main target of Apple when it files a response in court by early next week.
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The magistrate judge wrote an opinion geared towards the San Bernardino iPhone and the future dangers of the All Writs Act, but the only iPhone he was asked to look at was an old, outdated one that Apple could have easily cracked.
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AND RELATED TO THE ALL WRITS ACT POINT THAT YOU ASKED ME ABOUT, JOSH, THE SEPARATION OF POWERS DOCTRINE, WHICH IS REALLY IMPORTANT HERE, SAYS THAT COURTS ARE TO DECIDE CASES AND UNDER THE LAW, AND UNDER THE POWERS THAT CONGRESS GIVES THEM.
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According to documents detailing Apple's upcoming arguments in the case, provided to the AP by Apple attorney Theodore J. Boutrous Jr., the company will also claim that the US government is improperly using 1789's All Writs Act to force Apple's compliance.
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Apple is not doing that, of course, but to understand how the All Writs Act and custom firmware impact the security and privacy of everyone in the world you have to look past four headlines that say APPLE REFUSES TO UNLOCK TERROR PHONE.
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Apple's attorneys say the government's use of the 1789 All Writs Act to require Apple's help exceeds the authority of the law and the company says the Obama administration should seek congressional approval of a new law to deal with the issue.
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The government apparently disagrees, however, because the DOJ is still going all in on the All Writs Act—the 1789 statute cited in the San Bernardino case—in a case in New York, over a meth dealer's iPhone 5s, running iOS 7.
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In a stinging rebuke five weeks ago, however, Magistrate Judge James Orenstein said in a 50-page ruling that the Justice Department had overstepped its authority in trying to use a 1789 statute called the All Writs Act to compel Apple's cooperation.
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"While Apple strongly supports the efforts of law enforcement in pursuing criminals, the government's sweeping interpretation of the All Writs Act is plainly incorrect and provides no limit to the orders the government could obtain in the future," Apple lawyers wrote Friday.
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Although the All Writs Act initially seemed like a useful tool in the Justice Department's fight for access to encrypted data, the two high-profile losses might keep the government from relying so heavily on the 227-year-old law in the future.
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The California case involves the FBI trying to use the All Writs Act to force Apple to actually create new software which would weaken the security of its devices — something it argues the government has no authority to compel it to do.
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Attorneys for Apple said that the company also intends to fight out this case, saying that although Apple has always complied with lawful court orders, the company now contends that this kind of use of the All Writs Act is not lawful.
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Starting in December, the letter says, Apple has in a number of cases objected to the Justice Department's efforts to force its cooperation through a 1789 statute known as the All Writs Act, which says courts can require actions to comply with their orders.
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Apple can theoretically comply with the data extraction request there, but is refusing to do so on two bases: extracting data from devices diverts manpower and resources, and that the government is trying to use a wide application of the All Writs Act of 1789.
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On a call with reporters following the ruling, a senior Apple executive said that this case was the first opportunity that any court has had to consider directly and specifically the issues of All Writs Act requests to Apple to facilitate access to an iPhone.
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We've also updated the piece to reflect the hearing date: The Justice Department's approach to investigating and prosecuting crimes has remained the same; the change has come in Apple's recent decision to reverse its long-standing cooperation in complying with All Writs Act orders.
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These instances are also important because, in the San Bernardino case, it seemed like we were heading toward setting a precedent as to whether or not the use of the All Writs Act to compel tech companies to provide assistance to the government was appropriate.
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"In the same vein, the government now seeks extraordinary assistance from Apple," Lavabit asserts, joining the chorus of voices arguing that the FBI's demand "far exceeds the scope of the All Writs Act and violates the rights guaranteed to Apple under the United States Constitution".
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In a scathing 50-page ruling, Judge James Orenstein denied the application for an All Writs order compelling Apple to unlock Feng's phone, casting doubt on the government's claims that it had done everything it could to get into the device on its own.
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"Only more recently, in light of the public attention surrounding an All Writs Act order issued in connection with the investigation into the shootings in San Bernardino, California, has Apple indicated that it will seek judicial relief, in that matter," according the DOJ court filing.
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The street-level dealer who owns the iPhone in question has already pleaded guilty and will be sentenced in May, yet the government is still arguing that a judge should use the All Writs Act of 1789 to compel Apple to unlock his phone.
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And in another case, the government is saying that the under the All Writs Act, which allows for a court order to compel a third party to assist with a warrant if it is "necessary," Apple must help law enforcement crack the company's own encryption.
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The court held that trial judges have broad authority under the All Writs Act and Rule 23 of the Federal Rules of Civil Procedure to issue orders protecting the integrity of their own previous rulings, even if those orders impact parties outside of their cases.
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At the heart of Apple's legal defense of its refusal to assist the FBI is an argument that the Justice Department is inappropriately taking advantage of an 18th-century law called the All Writs Act to force Apple to help it unlock the shooter's phone.
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Repeated use of the All Writs Act opens the Justice Department to additional embarrassment, as it insists Apple is the only entity that can help it get the information it needs — only to follow up with a whoops, just kidding court filing weeks later.
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A collection of 17 Internet companies, including Twitter, Airbnb and LinkedIn, filed a separate brief objecting to the government's use of the All Writs Act, a statute from 1789 that underlies many law enforcement requests for tech companies' data, in the San Bernardino case.
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In the New York case, Judge Orenstein rejected the government's argument that the All Writs Act of 1789 can be used to compel people and businesses like Apple that are not involved in a crime to help the government unearth evidence in situations like this.
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With so many All Writs Act cases around smartphones pending across the country, the ultimate outcome of the legal battle in the Eastern District of New York could have far-reaching ramifications for the extent of government search and seizure in the digital age.
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"There is nothing in the All Writs Act or the court's order that would put off-limits software 'updates' that turn on a smart TV's microphone for eavesdropping purposes or activate a laptop camera for video surveillance," wrote Stanford law professor Jennifer Stisa Granick.
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Unlike in other All Writs Act cases, it might not be possible to crack the device using the mysterious new technique the government obtained from a still-unidentified "outside party," which allowed the FBI to access the San Bernardino iPhone 231C without Apple's help.
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"Public access to All Writs Act cases is vitally important to an ongoing and nationwide debate regarding whether the government can use the Act to conscript private actors to break into mobile electronic devices, such as mobile phones," the ACLU wrote in the motion.
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That is a far cry from the "nonburdensome technical assistance" that the All Writs Act authorizes... With enough time and resources, amici's engineers could possibly come up any number of new versions of their companies' products that circumvent or undermine their pre-existing data-security features.
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Apple will also argue that the Obama administration's request to help it hack into an iPhone in a terrorism case is improper under an 18th century law, the 1789 All Writs Act, which has been used to compel companies to provide assistance to law enforcement in investigations.
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Kicking the case to Congress won't be only course of action: The company's expected to argue that the demand oversteps the powers granted to the government under the aged All Writs Act, and Bloomberg also believes that it will claim code should be protected as speech.
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If such a precedent were to propagate and be adopted by other courts or supported in superior ones, it would be a serious blow against the FBI's ability to use All Writs as an all-purpose phone-opener, as it currently does in dozens of cases.
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This is the entirety of the statute giving Apple so much grief:(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
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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.
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It's just a couple of short sentences, located at 28 USC §1651: (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
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The move was in line with what the department said it would do after a magistrate judge previously sided with Apple, ruling that the Justice Department could not use a 1789 law known as the All Writs Act to compel the tech giant to unlock the phone.
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That group noted that Congress passed the All Writs Act more than 200 years ago, and said the Justice Department's effort to use the law to force engineers to disable security protections relies on a "boundless" interpretation of the law that is not supported by any precedent.
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Justice intensified its deprecation of Apple in a letter unsealed Tuesday in federal court in Brooklyn, where a U.S. magistrate judge is weighing a government request that he order Apple, under the 1789 All Writs Act, to help investigators access data from an accused drug dealer's phone.
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In Friday's filing, the company accused the government of using the All Writs Act to try to set a precedent — a criticism that has been leveled by other defenders of the company who believe the FBI is trying to force de facto encryption policy through the courts.
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This one is way simpler: in 1977, the Supreme Court ruled that the government could use the All Writs Act to compel New York Telephone Company to install a device that recorded the phone numbers dialed on a pair of phones suspected of being used in criminal activity.
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Apple successfully appealed the order on the grounds that it relied on an expanded interpretation of the All Writs Act (AWA) — the same act, passed in its current form more than 100 years ago, that the FBI is leaning on to order Apple to unlock the San Bernardino iPhone.
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"The situation would be no different than if the government sought to use the All Writs Act to force a safe manufacturer to travel around the country unlocking safes that the government wants to access, or to make a lock manufacturer pick locks for the government," it said.
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Some 17 companies whose technology collectively reaches hundred of millions of people filed a brief today, arguing that the government's use of the centuries-old All Writs Act to force Apple to undermine its own carefully constructed device security is both extraordinary and unprecedented — and has no legal basis.
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Moreover, Apple's resistance to the order, issued under a 1789 law called the All Writs Act, is not based on the Constitution, because there is no question that the government has a sound basis to search for evidence that might be on the iPhone about planning for the attack in December.
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The tech giant had been fighting the Justice Department's attempts and said in court papers last week the government's request was extraordinary because there is likely minimal evidentiary value of any data on the phone and that Congress never authorized it to pursue such requests through the 1789 All Writs Act.
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Preempted by CALEABoth the Apple brief in the California case and Orenstein's ruling have adopted the argument that because the Communications Assistance for Law Enforcement Act (CALEA) does not authorize law enforcement to get the kind of order it is seeking in the iPhone cases, the All Writs Act doesn't, either.
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William joins us from The Daily Dot, where he's a prolific and versatile writer who has called bullshit on John McAfee, explained the hella confusing All Writs Act, broken news on several high-profile hacks, and written some excellent features including this one on a US family torn apart by cyberattacks.
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He held up a 1912 adding machine, the same one he brought to his testimony before Congress last week to show that the All Writs Act, the case law the FBI is citing in the case over Apple encryption is over 200 years old and was last updated in 1911.
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Cuban suggested new legislation that compels a company to remove security or encryption from mobile devices in only four specific circumstances: The goal of such legislation would be to remove the All Writs Act from this situation and limit the government's ability to pressure companies to decrypt their own security software.
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Ultimately, Judge Orenstein argued that the government couldn't use the All Writs Act to ask Apple to help extract information from a device just because a different law, the Communications Assistance for Law Enforcement Act, or Calea, addresses the issue and does not include an "information services" company like Apple.
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"This extraordinary and unprecedented effort to compel a private company to become the government's investigative arm not only has no legal basis under the All Writs Act or any other law, but threatens the core principles of privacy, security, and transparency that underlie the fabric of the Internet," the companies said.
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In the motion, Apple hinges its argument on the fact that the FBI is attempting to greatly expand the use of the All Writs Act: No court has ever granted the government power to force companies like Apple to weaken its security systems to facilitate the government's access to private individuals' information.
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Preempted by CALEA Both the Apple brief in the California case and Orenstein's ruling have adopted the argument that because the Communications Assistance for Law Enforcement Act (CALEA) does not authorize law enforcement to get the kind of order it is seeking in the iPhone cases, the All Writs Act doesn't, either.
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And because Congress has never passed a law that specifically deals with the FBI asking a tech company to install a hacked version of its own OS that bypasses lock-code restrictions, the FBI is relying on the All Writs Act as the basis of the court's power to make Apple comply.
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"Meanwhile, in the Central District Court of California on February 16, 2016, the government obtained an All Writs Act order requiring Apple to assist law enforcement in accessing the phone of one of the shooters involved in the mass murders in San Bernardino, California," lawyers for the Justice Department said in the filing.
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In that decision, Magistrate Judge Orenstein suggested that the government's interpretation of the All Writs Act, the statute the DOJ is using to try to compel Apple to write software that would override security measures it's designed into its phones, would undermine the separation of powers and "trample" on the US Constitution itself.
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Apple had voluntarily helped prosecutors unlock phones in some 70 earlier cases involving phones with the older operating systems, but it changed its stance last fall and began challenging the Justice Department's legal authority to use a 1789 statute called the All Writs Act to force its technical assistance in such cases.
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And perhaps most importantly, a New York judge ruled that Apple didn't have to decrypt a locked iPhone in another case across the country, punching a potential hole in the FBI's legal theory that the 1789 All Writs Act can be used to compel companies to cooperate in this sort of intel-collection tactic.
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"Instead of complying, Apple attacked the All Writs Act as archaic, the Court's Order as leading to a 'police state,' and the FBI's investigation as shoddy, while extolling itself as the primary guardian of Americans' privacy," the government wrote in its brief, filed in the US District Court for the Central District of California (.pdf).
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We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology, and civil liberties to discuss the implications for law enforcement, national security, privacy, and personal freedoms.
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Cook also criticized authorities for using the All Writs Act and not Congressional legislation to make the request, which he labeled "a dangerous precedent" that would seriously weaken Apple's security system: The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically.
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"The Founders would be appalled," Apple writes Tuesday in response to the U.S. Department of Justice's argument that the All Writs Act can be used to compel Apple to create a new version of iOS to circumvent the encryption on the iPhone belonging to a gunman that killed 14 people in San Bernardino in December.
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And for all of the attention now focused on Apple's announced opposition to a newly issued All Writs Act order directing the company to help Justice Department investigators break the passcode on an iPhone belonging to San Bernardino shooter Syed Farook, the Feng case is quite likely to produce a ruling before the Farook case.
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"The issue at hand is whether the government can use the All Writs Act to force an unwilling third party, Apple, to create what it claims is a back door," said Joseph DeMarco, a former federal prosecutor who filed a brief on behalf of law enforcement groups that supported the Justice Department in this case.
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Judge Orenstein said that even if the All Writs Act could be interpreted in the way the Justice Department says it should be, he would have to reject the government's request for three other reasons: Apple has no involvement in the crime in question and does not own the phone that officials want unlocked.
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While much of Apple's argument is that the All Writs Act does not apply, the free speech and due process claims could prove helpful if the company wants to attract the attention of the Supreme Court, said Jill Bronfman, director of the Privacy and Technology Project at University of California Hastings College of the Law.
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To drive his support of Apple home, Smith actually pulled out an ancient calculator from 1911, just to highlight how the current version of the All Writs Act — the United States law invoked by the FBI to requisition Apple's assistance in this case — was never meant to apply to modern technology like the iPhone.
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We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology and civil liberties to discuss the implications for law enforcement, national security, privacy and personal freedoms.
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When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
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Even if the password had not been changed and Apple could have turned on the auto-backup and loaded it to the cloud, there might be information on the phone that would not be accessible without Apple's assistance as required the All Writs Act order, since the iCloud backup does not contain everything on an iPhone.
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"We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology and civil liberties to discuss the implications for law enforcement, national security, privacy and personal freedoms," he wrote.
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The 50-page opinion he issued Monday, denying the Justice Department's application for an order under the All Writs Act to compel Apple to help the government unlock the phone of a convicted drug dealer, will not end the California federal-court showdown between Apple and the Justice Department over an iPhone belonging to San Bernardino shooter Syed Farook.
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"This extraordinary and unprecedented effort to compel a private company to become the government's investigative arm not only has no legal basis under the All Writs Act or any other law, but threatens the core principles of privacy, security, and transparency that underlie the fabric of the Internet," wrote 17 companies, including Twitter, in their brief.
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Even if the password had not been changed and Apple could have turned on the auto-backup and loaded it to the cloud, there might be information on the phone that would not be accessible without Apple's assistance as required by the All Writs Act order, since the iCloud backup does not contain everything on an iPhone.
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Bits Not so fast, F.B.I. That was the message coming from the Federal District Court for the Eastern District in New York on Monday, when a judge ruled that the United States government couldn't use the All Writs Act of 1789 to force Apple to produce data connected to an iPhone seized in connection with a drug case.
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The request to compel Apple to provide information on the iPhone was relatively routine (Apple has complied with these requests before,) but relied on an expanded interpretation of the All Writs Act (AWA) — which is currently also being used to try to force Apple to unlock an iPhone in a separate case in San Bernardino, California.
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The legal issues in the case are identical to the legal issues in a much more high-profile case in California over an iPhone owned by deceased San Bernardino shooter Syed Farook—can the government use the All Writs Act of 1789 to compel Apple to assist law enforcement in bypassing the security of its own devices?
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Thursday, the American Civil Liberties Union filed a motion to unseal a list of documents in the case (embedded below), in which the government appears to be trying to use the controversial All Writs Act of 21789 to force Apple to help it decrypt what is believed to be an iPhone 221 Plus running iOS 33.
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While the F.B.I. has previously used the All Writs Act to obtain information from Apple, the company said "Congress has never authorized judges to compel innocent third parties to provide decryption services to the F.B.I." A Justice Department spokeswoman said investigators had long held the power to secure court orders that compel outside parties like Apple to assist with search warrants.
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In the press, in committee hearings, on Capitol Hill — none of these may be "behind-closed-door" affairs, but they don't engage the public openly, which allows for authorities like the FBI to throw around their authority or use specious legal interpretations of laws like the All Writs Act to bully private individuals or enterprises into relinquishing control of their data.
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"We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology, and civil liberties to discuss the implications for law enforcement, national security, privacy, and personal freedoms," the company said in a statement.
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If the government can invoke the All Writs Act to compel Apple to create a special operating system that undermines important security measures on the iPhone, it could argue in future cases that the courts should compel Apple to create a version to track the location of suspects, or secretly use the iPhone's microphone and camera to record sound and video.
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In denying the request, Orenstein finds the government's interpretation of the All Writs Act is so broad as to be unconstitutional: the ruling echoes many of the arguments put forward by Apple The ruling doesn't have any direct effect on the San Bernardino case, but it gives Apple a much stronger hand if the California District Court finds in the government's favor.
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The idea that the FBI only cared about unlocking just one iPhone in its recently-abandoned legal battle with Apple was always fiction: The American Civil Liberties Union has discovered at least 63 court orders in 22 states in which the federal government invoked the All Writs Act to compel Apple or Google to help it access data on a password-protected phone in a criminal investigation.
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Apple's stance got reinforcement at the end of February when in a separate but legally similar case in New York, a district court judge ruled in favor of Apple by denying a government request for information on an iPhone, saying that the government had failed to prove it is entitled to force Apple to help it bypass the device's passcode by the All Writs Act.
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Between the mysterious hack that ended the San Bernardino case, and the government's bizarre disavowal of a widely-available tool in the ongoing New York case, it looks less and less like the All Writs Cases are about the government's fear of "going dark," and more about what the government perceives as its right to keep hitting up Silicon Valley like its own personal IT department.
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Here's why Chelsea Manning trial couldn't have public access, for instance, according to Just Security:In the Bradley Manning court martial proceedings, for example, the highest court in the military justice system – the Court of Appeals for the Armed Forces (CAAF) – held that it lacked the authority under the All Writs Act to grant extraordinary relief to protect the First Amendment right of public access to criminal trials identified by the Supreme Court in Richmond Newspapers and its progeny.
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