Feds Turn to 1789 Law to Compel Apple Smartphone Access, Music Publishers Sue Cable Provider, Wells Fargo Closes Prisoner Bank Accounts

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 1, 2014

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Federal prosecutors are turning to a 1789 law to compel Apple and other tech companies to aid law enforcement in accessing locked smartphones, two music publishers are suing a cable Internet provider for failing to restrict illegal music downloads, and Wells Fargo severs ties with a company designed to assist inmates manage money while in prison.

Federal Proseuctors use 1789 Law to Require Apple to Unlock Encrypted Smartphones

Earlier this year, FBI officials expressed concern about the new encryption software that companies such as Apple and Google are installing on new smartphones.  According to government law enforcement, increased security built into smartphone software could make investigation of criminal activity difficult, if not impossible, because valuable data contained on personal phones would be inaccessible without the user unlocking the device.  While enhanced encryption measures are a welcome addition for millions of smartphone users, particularly as the extent of NSA surveillance becomes public, the government continues to look for ways to require tech companies to help law enforcement access private information during criminal investigations.

Recently, government officials have emerged from the law books with a 1789 article known as the All Writs Act which arguably requires Apple and Google to provide all “reasonable technical assistance” to help police officers decrypt messages and data contained on smartphones.   The 18th century federal law allows courts to issue a writ, which is an order, compelling a company to do something such as assist law enforcement execute a warrant.  Power under the All Writs Act is not clearly defined because the law is rarely used, so its application to personal device encryption software is relatively new territory.

Two federal criminal courts have recently sided with prosecutors who asked judges to compel Apple to assist law enforcement in executing a search warrant on a locked smartphone.  Although the records in both cases are largely sealed, portions of the released documents indicate that both magistrate judges believed that Apple “provide reasonable technical assistance to enable law enforcement agents to obtain access to unencrypted data.”  However, neither judge felt that the All Writs Act could be used to force Apple to decrypt information or “otherwise enable law enforcement’s attempts to access any encrypted data.”

This potentially broad use of the All Writs Act will likely play out in more federal courts in the future, but the issue could ultimately be rendered moot if, true to its billing, the encryption software makes it impossible for tech companies like Apple or Google to provide the assistance required. 

Music Companies Sue Cable Internet Provider over Illegal Downloading

Music publishers BMG Rights Management and Round Hill Music have sued Cox Communications, an Internet provider serving 4 million households, for failing to prevent illegal music downloading.  The music companies claim that Cox is not fulfilling its obligation to aggressively pursue and punish users who download music illegally.  Should Cox be held responsible, the company will owe damages for thousands of unauthorized downloads by its users – setting a cautionary tone for other Internet Service Providers (ISPs) who may be similarly lax in action against illegal music downloads.

Cox has a written policy promising action against unauthorized music downloads, but according to lawyers for BMG, “Despite its published policy to the contrary, Cox’s actual policy is to refuse to suspend, terminate, or otherwise penalize subscriber accounts that repeatedly commit copyright infringement through its network in any meaningful numbers.”  While Cox identifies “repeat infringement” by users, the company does not terminate accounts because, according to the plaintiffs, “it would cause Cox to lose revenue.”

The case has far reaching implications in the ongoing fight against illegal music downloads.  If ISPs can be held legally liable to music publishers for failing to crack down on illegal downloading, Internet users can expect a significant increase in enforcement of anti-downloading policies as ISPs look to avoid similar legal action.

Wells Fargo Closes Prisoner Accounts

Banking giant Wells Fargo is cutting ties with Prisoner Assistant, a company that opens and manages bank accounts for inmates without access to the outside world.  Owner of Prisoner Assistant Michael Benanti started the company six years ago, and has used Wells Fargo to manage more than 600 accounts for inmates.  Mr. Benanti expressed his surprise and displeasure at the Wells Fargo decision, saying, “They have administered my accounts for Prisoner Assistant for almost six years, with no incident. We keep our accounts in good standing, and there is never a bounced check or overdrawn account.”

Wells Fargo declined to comment on the decision, which gives Benanti until January 5th to close the Prisoner Assistant accounts and find a new banking institution.  The company is no stranger to scrutiny: last year the Bureau of Prisons suspended communication between Prisoner Assistant and its clients over security concerns, and in 2011 officials in Pennsylvania investigated the company’s business practices but did not take any action.  Mr. Benanti has promised the business will continue despite the ongoing hurdles that arise due to the nature of his work.

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