The year is 1789. George Washington sat as the first President of the United States after taking office in April, and the first Congress passed a range of laws while sitting at Federal Hall in New York City, including one law that gave the Government the right to access password protected phones.

It may sound absurd, except that is the exact line used by the Department of Justice in a case before Magistrate Judge Gabriel Gorenstein in the United States District Court for the Southern District of New York in October.

Lawyers for the Department of Justice used The Writs Act of 1789 (28 U.S.C. § 1651) in its application to obtain a search warrant to examine the contents of the phone in a credit-card fraud case. They argued the Act gives the court sweeping powers to obtain its order, as the act allows “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

In his ruling of October 30, Judge Gorenstein cited precedent for applications under the Act, in particular the case of the United States vs The New York Telephone Company 1977, where the Government of the day sort “to issue an order requiring a telephone company to provide technical assistance to the Government in its effort to install a “pen register” — a device for recording the numbers dialed on a telephone.”

The targeted phone company in the case was withheld by the court, however the Wall Street Journal speculates that it is Apple, given the order is targeted at the “manufacturer of the cellphone, and Apple is one of the few companies that produce both the phone itself and the software that would manage the encryption.”

While use of court orders are not unprecedented in cases where Government authorities wish to bypass encryption, the decision based on the Writs Act (which is far broader than other Acts pertaining specifically to access to encrypted data) would in practice further negate the protections provided by the 5th Amendment, where “no person shall be compelled in any criminal case to be a witness against himself.” The protection becomes moot as law enforcement obtains more sweeping powers to access data.

The move follows a hearing in October where a Circuit Court Judge in Virginia ruled “that while a criminal defendant can’t be compelled to hand over a passcode to police officers for the purpose of unlocking a cellular device, law enforcement officials can compel a defendant to give up a fingerprint.”

photo credit: JoshSemans via photopin cc