'Routine' demands for encrypted data go far beyond Apple, raising questions

Analysis: It's not just Apple that has been compelled to turn over data under a 230-year-old law. Where do these "quite ordinary" requests end?
Written by Zack Whittaker, Contributor

All Writs Act orders for assistance from tech companies. (Image: ACLU)

The American Civil Liberties Union (ACLU) has identified 63 cases in which the government has sought a court order demanding Apple or Google access to devices during investigations.

A range of government departments filed requests with the courts, including the Justice Dept., the FBI, the Secret Service, Homeland Security, and the Drug Enforcement Administration (DEA).

By invoking the All Writs Act, passed in 1789, the government can compel a company to comply with a court order even if it's not covered by existing law, so long as the request isn't impossible.

It was most recently used in a public showdown against Apple in an effort to force the company to unlock an iPhone used by one of the San Bernardino shooters. Apple also faces similar demands in New York -- a case it recently won, but also now in dozens more, according to compiled requests collected by the ACLU.

Google didn't say how often it complies with orders filed under the All Writs Act, or when it contests them, according to Reuters.

"The FBI wants you to think that it will use the All Writs Act only in extraordinary cases to force tech companies to assist in the unlocking of phones," said Eliza Sweren-Becker, an ACLU attorney, in a blog post on Wednesday.

"Turns out, these kinds of orders have actually become quite ordinary," she said.

But it does raise the prospect that the government's use of the All Writs Act may not be limited to Apple's case. And exactly where it stops remains unclear.

Given that in Google's case, it may face challenges turning over some data given the customization on its Android platform, would it defer responsibility to device makers, such as HTC, LG, Samsung, and others?

And, given that it's not just data that's stored on devices but apps that provide end-to-end encryption, it's possible that companies like WhatsApp, Telegram, and soon-to-be Snapchat and other apps could face similar demands.

We reached out to Google but did not hear back at the time of writing.

Editorial standards