Dive Brief:

• The U.S. Department of Justice has tapped a 1789 law to compel Apple and possibly another company to unlock encrypted phones.

• The All Writs Act allows courts to force an action that would aid in cases like a criminal prosecution. In Oakland, CA, the prosecution has a warrant to access an iPhone 5s, and another case in Manhattan involves a smartphone of unknown make or model. Ars Technica has published the documents from the California case, which were previously sealed.

• In these cases, two different federal judges agreed with prosecutors’ arguments that the 18th century law permits the court to force the companies to unlock the phones, although the magistrate in the California case explicitly said that Apple need not decrypt any data. Nearly ten years ago, a New York magistrate ruled against the notion.

Dive Insight:

These cases have alarmed civil liberties advocates and some legal scholars. In the California case, the request is just to get past the locked screen, but several observers are uncomfortable with the precedent. Some experts told Ars Technica that the unusual move may be part of an extreme reaction from law enforcement. Authorities may be worried because Apple has designed iOS8 so that it can’t assist with encrypted code, because Apple itself can’t decrypt it.