Feds Have Asked Apple and Google to Crack Into Smartphones 63 Times Since 2008

FBI Director James Comey arrives for a hearing on "The Encryption Tightrope: Balancing Americans' Security and Privacy" on Capitol Hill in Washington on March 1. REUTERS/Joshua Roberts

Since receiving a court order to compel Apple to crack open the San Bernardino, California, shooter's iPhone, the FBI maintained that the case was about only one iPhone. But a new report from the American Civil Liberties Union (ACLU) says the FBI's requests to Apple are common.

The ACLU has uncovered 63 cases in 22 states since 2008 where the FBI, the Department of Homeland Security, the Secret Service and other governmental institutions have applied for an order to force Apple and Google, which makes Android devices, to assist in opening their smartphones. The ACLU also unearthed 13 additional cases—12 currently pending and one unconfirmed due to lack of public information.

All cases found by the ACLU invoke the All Writs Act, a law from 1789 that allows government to get court commands to compel nongovernmental parties to their assistance. The legality of using the All Writs Act for technological assistance has been hotly debated since the beginning of the Apple-FBI fight. A judge shot down a separate New York case in February on a separate FBI request to open an iPhone, ruling that the All Writs Act was being interpreted much more broadly than the founders intentioned.

On Monday, the FBI and the Department of Justice pulled the case involving the San Bernardino shooter's phone, claiming they cracked the iPhone in question without Apple's help. Still, many expect similar legal battles to be inevitable in the near future.

Most of the 76 orders that the ACLU listed in an interactive map were directed at Apple to open the lock screen; only nine were Google phones. The San Bernardino case was labeled under "create code."

The federal government has been preaching the narrative that the demand was made solely for an exceptional case to investigate the deadliest domestic terrorist attack since 9/11. In the DOJ's first motion against Apple on February 19, it wrote that the court order "does not require Apple to create or provide a 'back door' to every iPhone." The White House concurred, stating the case was instead about federal investigators learning "as much as they can about this one case."

The ACLU believes most of the orders were predominantly from drug crime investigations. The civil rights nonprofit organization says it launched its own investigation after hearing the DOJ revealing it had already secured approximately 70 such orders from Apple in the past.

The ACLU plans to learn more about these All Writs Act orders through a pending Freedom of Information Act request filed jointly with the Stanford Center for Internet and Society.

"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," reads the ACLU blog post on the finding. "Turns out, these kinds of orders have actually become quite ordinary."