A House lawmaker has introduced legislation that would prevent agencies like the Federal Bureau of Investigation from using a 200-year-old law to force tech companies to help hack into their own devices.
“The FBI’s recent attempt to interpret a 1789 law as granting them the power to compel a company to fundamentally undermine their product shocked privacy and intellectual property advocates across our nation,” Arizona Republican Rep. Matt Salmon said in a statement introducing his legislation.
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“Contrary to the FBI’s assertion, should they get their way, the safety and security of everyday Americans’ data will be compromised,” Salmon adds. “We cannot allow this to happen. The Protect Our Devices Act would make it utterly clear that a 1789 law does not grant the judiciary the authority to coerce companies into hacking their own products. America is better than that.”
Salmon’s legislation would prevent law enforcement agencies from using the 217-year-old All Writs Act to try to search cellular devices. The act enables courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
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The legislation has been used in several cases by courts around the country to try to force tech companies to help law enforcement bypass security on their products. The most prominent case involves the Apple iPhone used by terrorists in California, which prompted the FBI to compel the company to write software that would bypass security on the device.
Critics of the law have noted that it is being used to do something that Congress has never intentionally voted to enable. Apple’s attorneys made that point in a brief in the case that said, “The Justice Department and FBI are seeking an order from this Court that would force Apple to create exactly the kind of operating system that Congress has thus far refused to require.”
“They are asking this Court to resolve a policy and political issue that is dividing various agencies of the Executive Branch as well as Congress. This Court should reject that request, because the All Writs Act does not authorize such relief, and the Constitution forbids it,” the attorneys argued.
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While Congress has failed to pass a law modernizing the All Writs Act in that respect, it remains to be seen whether it will pass Salmon’s legislation either. Salmon announced in February that he plans to retire at the end of his term, and is not running for re-election.
