October 12, 2005 | By Kurt Opsahl

The All Surveillance Act?

In the Government's response to EFF's amicus brief opposing the use of your cell phone to track your location, it supplies a new argument for the court's authority to force your wireless carrier to give this information: the All Writs Act.

The All Writs Act is a federal law that empowers federal courts to issue the writs (court orders) that are "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." It's sort of a catch-all law, allowing the court to get assistance from a third party to execute a prior order of the court, so long as the assistance required is not overly burdensome and does not violate the Constitution.

We strongly dispute the Government view of the breadth and strength of the All Writs Act as a cell phone surveillance tool, especially where, as here, Congress has specifically limited the use of cell site information to track location. The U.S. Supreme Court has explained, "Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling."

But the most interesting part of the Government's response is what it reveals about the DOJ's expansive use of the All Writs Act in other cases. Without citation to any case supporting the invasive surveillance of credit cards without probable cause, the Government notes:

Currently, the government routinely applies for and upon a showing of relevance to an ongoing investigation receives "hotwatch" orders issued pursuant to the All Writs Act. Such orders direct a credit card issuer to disclose to law enforcement each subsequent credit card transaction effected by a subject of investigation immediately after the issuer records that transaction.

This is a revelation since these so-called "hotwatch" orders have not been previously mentioned in court cases, law review articles, or DOJ materials. While the cell phone tracking case is still ongoing, our litigation has unveiled yet another step taken towards the surveillance society.

The All Writs Act should not become the All Surveillance Act. As the Supreme Court has acknowledged, the Act was only intended to be a residual authority to issue writs that are not otherwise covered by statute, but the Act does not authorize courts to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate. It's high time for courts to scale back this pernicious use of the All Writs Act and help carve out a future in which we would want to live.


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