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Apple, Google Ordered To Unlock Smartphones Since At Least 2008

Photo Illustration: Ariel Zambelich

Throughout the fight over whether Apple should help unlock the San Bernardino shooter's iPhone was the understanding that this was not Apple's first time at bat.

Now, documents show that Apple has been facing similar requests since at least 2008, and that the Silicon Valley giant is not alone, as Google, too, has fielded calls for help unlocking phones in court, for instance to bypass a lock screen and reset a password.

The documents came out of a request by the American Civil Liberties Union, which obtained court records from around the country on cases where the government invoked the All Writs Act — the broad 1789 law at the center of the Apple-FBI dispute — to compel a tech company's help in retrieving contents of a locked device.

The documents reveal 63 confirmed cases where the government asked Apple or Google through courts to help get inside a locked device, predominantly in drug crime investigations, the ACLU says. Though disclosures in an ongoing Brooklyn case had confirmed that the Justice Department had about 70 existing All Writs orders, the documents show that Google is as involved in them as Apple.

Google said this in a statement to The Wall Street Journal:

" 'We carefully scrutinize subpoenas and court orders to make sure they meet both the letter and spirit of the law,' a Google spokesman said. 'However, we've never received an All Writs Act order like the one Apple recently fought that demands we build new tools that actively compromise our products' security. ... We would strongly object to such an order.' "

What the documents also show is the extent to which a legal precedent from the high-profile San Bernardino case could have had influence. More and more commonly, investigators are faced with complex digital locks that they believe hide important evidence. But what should be the role of the tech companies in unlocking them?

"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," ACLU attorney Eliza Sweren-Becker said. "Turns out, these kinds of orders have actually become quite ordinary."

Over the years, government agencies including the FBI, the Department of Homeland Security, the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives have requested a variety of types of help from Google and Apple in cases that span all regions of the country from New Mexico to Massachusetts, Oregon to Alabama, court records show.

Though the documents don't show the extent of the companies' compliance, we do know that in some cases, Apple did comply as has been disclosed before.

For instance, in the 2008 Secret Service investigation of a child exploitation case, United States v. Jansen, Apple helped bypass the lock screen of an iPhone at the court's request.

In some of the cases in the ACLU records, the government plays out the arguments seen in the San Bernardino case. "The government is aware, and can represent, that in other cases, courts have ordered the unlocking of an iPhone under this authority," U.S. Attorney Melinda Haag and Assistant U.S. Attorney Garth Hire write in a 2014 case in the Northern District of California. "Additionally, Apple has routinely complied with such orders."

And then, the magistrate judge, Kandis Westmore, writes in response: "Apple shall not be required to maintain copies of any user data ... all evidence preservation shall remain the responsibility of law enforcement agents."

Naomi LaChance is a business news intern at NPR.

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Naomi LaChance