People concerned about digital security can rest easy now that the FBI has backed away from its public fight with Apple over iPhone encryption, right?
Not so fast.
As many of us have said from the beginning, this case was not about one phone. And new research published by the ACLU shows the legal questions it raised have never been about one phone. A map produced by the national ACLU based on research conducted there and at our office, the ACLU of Massachusetts, shows that the government has tried to use the All Writs Act to force companies to help investigators get into phones in dozens of cases across the country. And it’s not just Apple that is facing these demands; the government has also put legal pressure on Google.
Many of the records in these cases are sealed, so it’s not always clear exactly what’s going on. But if you take a look at the court filings we uncovered, you’ll see that the California case was far from the first time the government has tried to force a technology company to unlock a cell phone.
So much for FBI director James Comey’s claim that his organization’s legal push was only about one phone. As he said that, federal agents were involved with cases across the United States in which they were trying to get courts to force Apple and Google to break into many, many other phones.
How could it be that we never knew about these cases until now? Ironically, we might not know about any of this had the FBI not chosen to make public its battle with Apple over the San Bernardino phone. But it’s a good thing they made that decision. Now we know what the government’s been up to in the shadows—and have a chance to add our voices to the conversation. After all, democracy doesn’t work when the government’s agents hash out the law in secret, behind closed doors.
Transparency in these cases matters, in no small part because it allows millions of Americans a chance to debate a legal question whose answer will reverberate and shape our society and individual lives for decades, in ways we may not now even understand. Essentially, that question is: can the government force tech companies to hack their own users?
As these court records show, the FBI/Apple battle in California was only one small part of a much larger test to determine an answer to that monumental question, at least in the courts. That battle may be over, but the war is far from won.