The Department of Justice is going to absurd lengths in order to unlock encrypted smartphones. It's using a law from the 1700s to force Apple and at least one other company to cooperate with law enforcement officials in investigations dealing with locked, encrypted phones. And the courts, so far, are letting it happen.

The 18th century law in question is the All Writs Act, which basically gives courts the right to issue whatever writs or orders in order to compel someone to do something. One of the cases is in Oakland and specifically asks Apple to unlock an encrypted iPhone 5S, citing the All Writs Act. (The prosecutors have a warrant to search the phone.) The other case, which is in Manhattan, doesn't name a specific phone or manufacturer but cites the same 225-year-old law. In both cases, the federal judge agrees that the phone manufacturers should obey the order. Fortunately, the Feds' unique approach to gaining access to user data doesn't necessarily get them all the data they are looking for; in at least one case, the judge is not ordering Apple to decrypt any encrypted data beyond just plugging in the lock screen code.

This sort of thing is rare but not entirely unheard of. In 2005, a federal judge refused to accept the All Writs Act as justification for the government accessing real time cell phone data, calling the attempt a "Hail Mary play." While the judge in the California case accepts the 18th-century statute in this case, she's not entirely bending to the will of law enforcement. Magistrate Judge Kandis Westmore wrote in her reply to the federal prosecutors' request for Apple to unlock the phone:

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It is further ordered that, to the extent that data on the iOS device is encrypted, Apple may provide a copy of the encrypted data to law enforcement but Apple is not required to attempt to decrypt, or otherwise enable law enforcement's attempts to access any encrypted data.

So at least there's that.

The New York case remains sealed, but civil liberties experts told Ars Technica that this sets a scary precedent whether the resulting data is decrypted or not. "That's kind of like the question of could the government compel your laptop maker to unlock your disk encryption?" Alex Abdo from the American Civil Liberties Union (ACLU) told Ars Technica who obtained the court documents. "And I think those are very complicated questions, and if so, then that's complicated constitutional questions whether the government can conscript them to be their agents. Then there's one further question: can the government use the All Writs Act to compel the installation of backdoors?"

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Ever since Apple and other smartphone makers started offering tougher encryption, cops have been freaking out and saying all kinds of crazy things about how this move will help the criminals win. Just recently, the number two guy at Department of Justice even said that these new encryption standards would kill a child.

It's encouraging that the judge isn't ordering Apple to decrypt the iPhone in the California case. (If the phone is running iOS 8, Apple wouldn't even be able to decrypt it, though a good hacker probably could.) And of course, it's totally legal for cops to conduct a search with a warrant. Nevertheless, it does feel like the unsettling trend of cops going to any length necessary to gain access to user data is becoming more unsettling with each new case. [Ars Technica]

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