[Cryptography] OCR'd DOJ Motion to Compel Apple
Henry Baker
hbaker1 at pipeline.com
Sat Feb 20 15:43:22 EST 2016
FYI -- OCR'd version of DOJ's motion to compel Apple. I cleaned it up a little, but there are almost certainly additional errors, so double check everything with the pdf file.
Exhibit 1 is just Tim Cook's letter:
http://www.apple.com/customer-letter/
http://www.wired.com/wp-content/uploads/2016/02/Apple-iPhone-access-MOTION-TO-COMPEL.pdf
----
EILEEN M. DECKER
United States Attorney
PATRICIA A. DONAHUE
Assistant United States Attorney
Chief, National Security Division
TRACY L. WILKISON (California Bar No. 184948)
Assistant United States Attorney
Chief, Cyber and Intellectual Property Crimes Section
ALLEN W. CHIU (California Bar No. 240516)
Assistant United States Attorney
Terrorism and Export Crimes Section
1500 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-0622/2435
Facsimile: (213) 894-8601
Email: Tracy.Wilkison at usdoj.gov
Allen.Chiu at usdoj.gov
Attorneys for Applicant
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
IN THE MATTER OF THE SEARCH OF
AN APPLE IPHONE SEIZED DURING
THE EXECUTION OF A SEARCH
WARRANT ON A BLACK LEXUS IS300,
CALIFORNIA LICENSE PLATE
35KGD203
ED No. CM 16-10 (SP)
GOVERNMENT'S MOTION TO COMPEL
APPLE INC. TO COMPLY WITH THIS
COURT'S FEBRUARY 16, 2016 ORDER
COMPELLING ASSISTANCE IN SEARCH
EXHIBIT
Hearing Date: March 22, 2016
Hearing Time: 1:00 p.m.
Location; Courtroom of the Hon.
Sheri Pym
The United States of America, by and through its counsel of
record, the United States Attorney for the Central District of
California, and Assistant United States Attorneys Tracy L. Wilkison
and Allen W. Chiu, hereby files its Motion to Compel Apple Inc.
("Apple") to Comply with this Court's February 16, 2016 Order
Compelling Apple To Assist Agents In Its Search.
This Motion is based upon the attached memorandum of points and
authorities, the attached exhibit, the files and records in this case
including the application and order compelling Apple to assist the
FBI and the underlying search warrant, and such further evidence and
argument as the Court may permit.
Dated: February 19, 2016 Respectfully submitted,
EILEEN M. DECKER
United States Attorney
PATRICIA A. DONAHUE
Assistant United States Attorney
Chief, National Security Division
TRACY L. WILKISON
ALLEN W. CHIU
Assistant United States Attorneys
Attorneys for Applicant
UNITED STATES OF ANERICA
TABLE OF CONTENTS
DESCRIPTION PAGE
TABLE OF AUTHORITIES ii
MEMORANDUM OF POINTS AND AUTHORITIES 1
I. INTRODUCTION 1
II. STATEMENT OF FACTS 3
III. THE COURT SHOULD ISSUE AN ORDER COMPELLING APPLE TO COMPLY
WITH ITS ORDER REQUIRING ASSISTANCE WITH THE FBI'S SEARCH
OF THE SUBJECT DEVICE PURSUANT TO THE ALL WRITS ACT
A. This Court's All Writs Act Order is Lawful and Binding 7
1. The All Writs Act 7
2. Apple is not "far removed" from this matter 10
3. The Order does not place an unreasonable burden
on Apple 12
4. Apple's assistance is necessary to effectuate the
warrant 16
5. Apple's Potential Marketing Concerns Provide
Insufficient Grounds to Disregard a Duly Issued
Court Order Following a Warrant Based on a
Finding of Probable Cause 18
6. Public Policy Favors Enforcing of the Order 21
B. Congress has Not Limited this Court's Authority to
Issue an All Writs Act Order to Apple 21
1. No statute addresses data extraction from a
passcode-locked cell phone 22
2. Congressional inaction does not deprive courts of
their authority under the All Writs Act 24
IV. CONCLUSION 25
TABLE OF AUTHORITIES
DESCRIPTION
FEDERAL CASES
Central Bank of Denver v. First Interstate Bank of Denver,
511 U.S. 154 (1994)
General Construction Company v. Castro,
401 F.3d 963 (9th Cir. 2005)
In re Application of the United States for an Order
Directing a Provider of Communication Services to Provide
Technical Assistance to the DEA, 2015 WL 5233551, at*45
(D.P.R. Aug. 27, 2015)
In re Application of United States for an Order Authorizing an
In-Progress Trace of Wire Commc'ns over Tel. Facilities
(Mountain Bell) , 616 F.2d 1122 (9th Cir. 1980) passim
In re Application of United States for an Order Directing X to
Provide Access to Videotapes (Access to Videotapes)
2003 WL 22053105, at *3 (D. Md. Aug. 22, 2003)
(unpublished)
In re Order Requiring [XXX], Inc. to Assist in the Execution
of a Search Warrant Issued by This Court by Unlocking a
Cellphone (In re XXX), 2014 WL 5510865, at *2 (S.D.N.Y.
Oct. 31, 2014)
Konop v. Hawaiian Airlines, Inc.,
302 F.3d 868 (9th Cir. 2002)
Pennsylvania Bureau of Correction v. United States Marshals
Service
474 U.S. 34 (1985)
Plum Creek Lumber Co. v. Hutton,
608 F.2d 1283 (9th Cir. 1979)
Riley v. California,
134 5. Ct. 2473 (2014)
United States v. Catoggio,
698 F.3d 64 (2d Cir.
United States v. Craft,
535 U.S. 274 (2002)
United States v. Fricosu,
(D. Co. 2012)
United States v. Hall,
583 F. Supp. 717 (E.D. Va. 1984)
United States v. Li,
55 F.3d 325, 329 (7th Cir. 1995)
United States v. Navarro,
No. l3-CR~5525, ECF No. 39 (W.D. Wa. Nov. 13, 2013)
United States v. New York Telephone Co.,
434 U.S. 159 (1977)
FEDERAL STATUTES
18 U.S.C. � 2510
18 U.S.C. � 3103
28 U.S.C. � 1651
47 U.S.C. � 1001
47 U.S.C. � 1002
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Rather than assist the effort to fully investigate a deadly
terrorist attack by obeying this Court's Order of February 16, 2016,
Apple has responded by publicly repudiating that Order. See Exhibit
1. Apple has attempted to design and market its products to allow
technology, rather than the law, to control access to data which has
been found by this Court to be warranted for an important
investigation. Despite its efforts, Apple nonetheless retains the
technical ability to comply with the Order, and so should be required
to obey it.
Before Syed Rizwan Farook ("Farook") and his wife Tafsheen Malik
shot and killed 14 people and injured 22 others at the Inland
Regional Center in San Bernardino, Farook's employer issued him an
iPhone. The Federal Bureau of Investigation ("FBI") recovered that
iPhone during the investigation into the massacre. The government
has reason to believe that Farook used that iPhone to communicate
with some of the very people whom he and Malik murdered. The phone
may contain critical communications and data prior to and around the
time of the shooting that, thus far: (1) has not been accessed; (2)
may reside solely on the phone; and (3) cannot be accessed by any
other means known to either the government or Apple. The FBI
obtained a warrant to search the iPhone, and the owner of the iPhone,
Farook's employer, also gave the FBI its consent to the search.
Because the iPhone was locked, the government subsequently sought
Apple's help in its efforts to execute the lawfully issued search
warrant. Apple refused.
Apple left the government with no option other than to apply to
this Court for the Order issued on February 16, 2016. The Order
requires Apple to assist the FBI with respect to this single iPhone
used by Farook by providing the FBI with the opportunity to determine
the passcode. The Order does not, as Apple's public statement
alleges, require Apple to create or provide a "back door" to every
iPhone; it does not provide "hackers and criminals" access to
iPhones; it does not require Apple to "hack [its] own users" or to
"decrypt" its own phones; it does not give the government "the power
to reach into anyone's device" without a warrant or court
authorization; and it does not compromise the security of personal
information. See Exhibit 1. To the contrary, the Order allows Apple
to retain custody of its software at all times, and it gives Apple
flexibility in the manner in which it provides assistance. In fact,
the software never has to come into the government's custody.
In the past, Apple has consistently complied with a significant
number of orders issued pursuant to the All Writs Act to facilitate
the execution of search warrants on Apple devices running earlier
versions of iOS.[1] The use of the All Writs Act to facilitate a
warrant is therefore not unprecedented; Apple itself has recognized
it for years, Based on Apple's recent public statement and other
statements by Apple, Apple's current refusal to comply with the
Court's Order, despite the technical feasibility of doing so, instead
appears to he based on its concern for its business model and public
brand marketing strategy.[2]
[Footnote 1: Apple's Legal Process Guidelines continue to state that Apple
will provide assistance with unlocking devices running 105 versions
earlier than 8.0, and advises as to what language to include in the
order. See "Extracting Data from Passcode Locked iOS Devices," Apple
Legal Process Guidelines � 111(1) (updated September 29, 2015),
available at http: //www.apple.com/privacy/docs/legal-process-
guidelines-us.pdf. However, Apple has informed another court that it
now objects to providing such assistance.]
[Footnote 2: As Apple has stated on its web page, "Our commitment to
customer privacy doesn't stop because of a government information
request Unlike our competitors, Apple cannot bypass your passcode
and therefore cannot access this data. So it's not technically
feasible for us to respond to government warrants for the extraction
of this data from devices in their possession running iOS8."
(https://web.archive.org/web/20l40918023950/http://www.apple.com/priv
acy/government-informaton-requests/). Notably, notwithstanding this
previous statement, Apple concedes that it has retained the ability
to do as the Court ordered.]
Accordingly, the government now brings this motion to compel.
While the Order includes the provision that "to the extent that Apple
believes that compliance with this Order would be unreasonably
burdensome, it may make an application to this Court for relief
within five business days of receipt of the Order," Apple's public
statement makes clear that Apple will not comply with the Court's
Order. The government does not seek to deny Apple its right to be
heard, and expects these issues to be fully briefed before the Court;
however, the urgency of this investigation requires this motion now
that Apple has made its intention not to comply patently clear.[3]
This aspect of the investigation into the December 2, 2015 terrorist
attack must move forward.
[Footnote 3: Although a separate order compelling Apple's compliance with
this Court's February 16, 2016, order is not legally necessary, in
light of Apple's publicly stated "[o]pposing [of] this order" and its
stated interest in adversarial testing of the order's legal merits,
the government files this noticed motion to provide Apple with the
due process and adversarial testing it seeks.]
II. STATEMENT OF FACTS
As set forth in the government's application for the All Writs
Act Order, and the Declaration of FBI Supervisory Special Agent
("SSA") Christopher Pluhar, which was attached thereto, both of which
were filed on February 16, 2016, the FBI has been investigating the
December 2, 2015 mass murder of 14 people, and the shooting and
injuring of 22 others, at the Inland Regional Center ("IRC") in San
Bernardino, California, and the participation by Farook and his wife
Malik in that crime. Farook and Malik died later that day in a
shoot-out after a pursuit with law enforcement.
Since that time, the FBI has been tirelessly investigating the
precise role of those who may have been involved in the attack. As
part of this investigation, the FBI obtained search warrants to
search, among other locations and items, the digital devices and
online accounts of Farook and Malik. Through those searches, the FBI
has discovered crucial information about the attack. For example,
the FBI discovered that on December 2, 2015, at approximately 11:14
a.m., a post on a Facebook page associated with Malik stated, "We
pledge allegiance to Khalifa bu bkr al bhaghdadi al quraishi,"
referring to Ahu Bakr Al Baghdadi, the leader of Islamic State of
Iraq and the Levant ("ISIL") , also referred to as the Islamic State
("IS") , or the Islamic State of Iraq and al-sham ("ISIS") , or Daesh.
ISIL is designated as a foreign terrorist organization by the United
States Department of State and has been so designated since December
2004. Moreover, a search warrant executed at Farook's residence
resulted in the discovery of thousands of rounds of ammunition and
over a dozen pipe bombs.
In addition, as part of the FBI's investigation, on December 3,
2015, the Honorable David T. Bristow, United States Magistrate Judge,
issued a search warrant in Docket Number ED 15-0451M for a black
Lexus IS300, which was a vehicle that Farook used. The vehicle was
parked outside of his residence where the thousands of rounds of
ammunition and pipe bombs were found. The search warrant for the
vehicle also ordered the search of digital devices located within it.
Inside the vehicle the FBI found a cellular telephone of an Apple
make: iPhone 5C, Model: A1532, P/N:MGFG2LL/A, S/N:FFMNQ3MTG2DJ,
IMEI:35882005230l412, on the Verizon Network (the "SUBJECT DEVICE")
The SUBJECT DEVICE is owned by Farook's employer at the San
Bernardino County Department of Public Health ("SBCDPH") , and was
assigned to, and used by, Farook as part of his employment. The
SBCDPH provided the government its consent to search the SUBJECT
DEVICE and to Apple's assistance with that search.[4]
[Footnote 4: In addition, SBCDPH has a written policy that all digital
devices are subject to search at any time by the SBCDPH, which
Farook accepted via signature upon employment.]
Nonetheless, despite the search warrant ordered by the Court and
the owner's consent to search the SUBJECT DEVICE, the FBI has been
unable to search the SUBJECT DEVICE because it is "locked" or secured
with a user-determined, numeric passcode. More to the point, the FBI
has been unable to make attempts to determine the passcode to access
the SUBJECT DEVICE because Apple has written, or "coded," its
operating systems with a user-enabled "auto-erase function" that
would, if enabled, result in the permanent destruction of the
required encryption key material after 10 failed attempts at the
entering the correct passcode (meaning that, after 10 failed
attempts, the information on the device becomes permanently
inaccessible).
The information and data contained on the SUBJECT DEVICE is of
particular concern to the government because, while evidence found on
the iCloud account associated with the SUBJECT DEVICE indicates that
Farook communicated with victims who were later killed during the
shootings on December 2, 2015, the backup iClcud data which the
government has been able to obtain for the account ends on October
19, 2015. In addition, toll records for the SUBJECT DEVICE establish
that Farook communicated with Malik using the SUBJECT DEVICE between
July and November 2015, but this information is not found in the
backup iCloud data. Accordingly, there may be critical
communications and data prior to and around the time of the shooting
that thus far has not been accessed, may reside solely on the SUBJECT
DEVICE; and cannot be accessed by any other means known to either the
government or Apple.
When the government first realized that Apple retained the means
to obtain that data from the SUBJECT DEVICE and that due to the way
that Apple created the software Apple was the only means of obtaining
that data, the government sought Apple's voluntary assistance. Apple
rejected the government's request, although it conceded that it had
the technical capability to help. As a result, without any other
alternative, on February 16, 2016, the government applied for -- and
this Court subsequently issued -- an Order pursuant to the All writs
Act, compelling Apple to assist the FBI in its search of the SUBJECT
DEVICE.
After the government served this Court's Order on Apple, Apple
issued a public statement responding directly to the Order. See
Exhibit 1. In that statement, Apple again did not assert that it
lacks the technical capability to execute the Order, that it is not
essential to gaining access into the iPhone, or that it would be too
time- or labor-intensive. Rather, Apple appears to object based on a
combination of: a perceived negative impact on its reputation and
marketing strategy were it to provide the ordered assistance to the
government, numerous mischaracterizations of the requirements of the
Order, and an incorrect understanding of the All Writs Act.
III. THE COURT SHOULD ISSUE AN ORDER COMPELLING APPLE TO COMPLY WITH
ITS ORDER REQUIRING ASSISTANCE WITH THE FBI'S SEARCH OF THE
SUBJECT DEVICE PTYRSUAI4T TO THE ALL WRITS ACT
A. This Court's All Writs Act Order is Lawful and Binding
To the extent that Apple objects that the Court does not have
authority under the All Writs Act to compel Apple to assist in the
execution of a lawfully obtained search warrant, this objection fails
because the authority to require reasonable third-party assistance
that is necessary to execute a warrant is well-established, and no
provision of any other law or any judicial decision justifies
limitation of that All Writs Act authority. To allow Apple not to
comply with the Order would frustrate the execution of a valid
warrant and thwart the public interest in a full and complete
investigation of a horrific act of terrorism.
1. The All Writs Act
The All Writs Act provides in relevant part that "all courts
established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to
the usages and principles of law." 28 U.S.C. � 1651(a), As the
Supreme Court explained, "[t]he All Writs Act is a residual source of
authority to issue writs that are not otherwise covered by statute,"
Pennsylvania Bureau of Correction v. United States Marshals Service,
474 U.S. 34, 43 (1985). Pursuant to the All Writs Act, the Court has
the power, "in aid of a valid warrant, to order a third party to
provide nonburdensome technical assistance to law enforcement
officers." Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th
Cir. 1979) (citing United States v. New York Telephone Co., 434 U.S.
159 (1977)). The All Writs Act permits a court, in its "sound
judgment," to issue orders necessary "to achieve the rational ends of
law" and "the ends of justice entrusted to it." New York Telephone
Co., 434 U.S. at 172-73 (citations and internal quotation marks
omitted) . Courts must apply the All Writs Act "flexibly in
conformity with these principles." Id. at 173; accord United States
v. Catoggio, 698 F,3d 64, 67 (2d Cir. 2012) ("[C]ourts have
significant flexibility in exercising their authority under the
Act.") (citation omitted).
In New York Telephone Co., the Supreme Court held that courts
have authority under the All Writs Act to issue supplemental orders
to third parties to facilitate the execution of search warrants. The
Court held that "[t]he power conferred by the Act extends, under
appropriate circumstances, to persons who, though not parties to the
original action or engaged in wrongdoing, are in a position to
frustrate the implementation of a court order or the proper
administration of justice, ... and encompasses even those who have not
taken any affirmative action to hinder justice." Id. at 174. In
particular, the Court upheld an order directing a phone Company to
assist in executing a pen register search warrant issued under Rule
41. See id. at 171-76; see also In re Application of United States
for an Order Authorizing an In-Progress Trace of Wire Commc'ns over
Tel. Facilities (Mountain Bell), 616 F.2d 1122, 1132--33 (9th Cir.
1980) (affirming district court's order compelling Mountain Bell to
trace telephone calls, on grounds that "the obligations imposed . .
were reasonable ones." (citing New York Telephone Co., 434 U.S. at
172)). New York Telephone Co. also held that "Rule 41 is not limited
to tangible items but is sufficiently flexible to include within its
scope electronic intrusions authorized upon a finding of probable
cause." 434 U.S. at 169. The Court relied upon the authority of a
search warrant pursuant to Rule 41 to predicate an All Writs Act
order commanding a utility to implement a pen register and trap and
trace device - before Congress had passed a law that specifically
authorized pen registers by court order. Under New York Telephone
Co. and Mountain Bell, the Court had authority pursuant to the All
Writs Act to issue the Order.
Further, based on the authority given under the All Writs Act,
courts have issued orders, similar to the one the Court issued here,
that require a manufacturer to attempt to assist in accessing a
celiphone's image files so that a warrant may be executed as
originally contemplated. See, e.g., In re Order Requiring [XXX],
Inc. to Assist in the Execution of a Search Warrant Issued by This
Court by Unlocking a Cellphone (In re XXX) , 2014 WL 5510865, at *2
(S.D.N.Y. Oct. 31, 2014) ; see also United States v. Navarro, No. 13-
CR-5525, ECF No. 39 (W.D. Wa. Nov. 13, 2013). Courts have also
issued All Writs Act orders in support of warrants in a wide variety
of contexts, including ordering a phone company to assist with a trap
and trace device (Mountain Bell, 616 F.2d at 1129); ordering a credit
card company to produce customer records (United States v. Hall, 583
F. Supp. 717, 722 (E.D. Va. 1984)); ordering a landlord to provide
access to security camera videotapes (In re Application of United
States for an Order Directing X to Provide Access to Videotapes
(Access to videotapes), 2003 WL 22053105, at *3 (D. Md. Aug. 22,
2003) (unpublished)) ; and ordering a phone company to assist with
consensual monitoring of a customer's calls (In re Application of the
United States for an Order Directing a Provider of Communication
Services to Provide Technical Assistance to the DEA, 2015 WL 5233551,
at *45 (D.P.R. Aug. 27, 2015)). The government is also aware of
multiple other unpublished orders in this district and across the
country compelling Apple to assist in the execution of a search
warrant by accessing the data on devices running earlier versions of
iOS, orders with which Apple complied.[5] In fact, as noted above,
Apple has long recognized this application, and has complied with
search warrants compelling Apple to extract data from older iOS
devices locked with a passcode. Until last year, Apple did not
dispute any such order.
[Footnote 5: In litigation pending before a Magistrate Judge in the Eastern
District of New York, that court sua sponte raised the issue of
whether it had authority under the All Writs Act to issue a similar
order. That out-of-district litigation remains pending without any
issued orders, nor would any such order be binding on this Court. In
any event, that litigation represents a change in Apple's willingness
to access iPhones operating prior iOS versions, not a change in
Apple's technical ability.]
In New York Telephone Co., the Supreme Court considered three
factors in concluding that the issuance of the All Writs Act order to
the phone company was appropriate. First, it found that the phone
company was not "so far removed from the underlying controversy that
its assistance could not be permissibly compelled." I~ at 174.
Second, it concluded that the order did not place an undue burden on
the phone company. See id. at 175. Third, it determined that the
assistance of the company was necessary to achieve the purpose of the
warrant. See id. As set forth below, each of these factors supports
the order issued in this case.
2. Apple is not "far removed" from this matter
First, Apple is not "so far removed from the underlying
controversy that its assistance could not be permissibly compelled."
Apple designed, manufactured and sold the SUBJECT DEVICE, and wrote
and owns the software that runs the phone -- which software is
preventing the search for evidence authorized by the warrant.
Indeed, Apple has positioned itself to be essential to gaining access
to the SUBJECT DEVICE or any other Apple device, and has marketed its
products on this basis. See, e.g., Apple's Security Guide,
www.apple.com/business/docs/iOS_Security_Guide.pdf. Apple designed
and restricts access to the code for the auto-erase function -- the
function that makes the data on the phone permanently inaccessible
after multiple failed passcode attempts. This feature effectively
prevents the government from performing the search for evidence
authorized by the warrant without Apple's assistance. The same
software Apple is uniquely able to modify also controls the delays
Apple implemented between failed passcode attempts - which makes the
process take too long to enable the access ordered by the Court.
Especially but not only because iPhones will only run software
cryptographically signed by Apple, and because Apple restricts access
to the source code of the software that creates these obstacles, no
other party has the ability to assist the government in preventing
these features from obstructing the search ordered by the Court
pursuant to the warrant. Just because Apple has sold the phone to a
customer and that customer has created a passcode does not mean that
the close software connection ceases to exist; Apple has designed the
phone and software updates so that Apple' s continued involvement and
connection is required.
Apple is also not made "far removed" by the fact that it is a
non-government third party. While New York Telephone Co. and
Mountain Bell involved public utilities, limiting All Writs Act
orders to public utilities is inconsistent with the broad scope of
judicial authority under the All Writs Act. New York Telephone Co.
emphasized that "the Company's facilities were being employed to
facilitate a criminal enterprise on a continuing basis[,J" and the
company's noncompliance "threatened obstruction of an investigation
which would determine whether the Company's facilities were being
lawfully used." 434 U.S. at 174. In Mountain Bell, the Ninth
Circuit emphasized that its decision "should not be read to authorize
the wholesale imposition upon private, third parties of duties
pursuant to search warrants," 616 F.2d at 1132, but Apple is not a
random entity summoned off the street to offer assistance, nor is it
the target of the investigation. Where Apple designed its software
and that design interferes with the execution of search warrants,
where it manufactured and sold a phone used by an ISIL-inspired
terrorist, where it owns and licensed the software used to further
the criminal enterprise, where it retains exclusive control over the
source code necessary to modify and install the software, and where
that very software now must be used to enable the search ordered by
the warrant, compulsion of Apple is permissible under New York
Telephone Co.
Moreover, other courts have directed All Writs Act orders based
on warrants to entities that are not public utilities. For example,
neither the credit card company in Hall nor the landlord in Access to
Videotapes was a public utility. See Hall, 583 F. Supp. at 722;
Access to Videotapes, 2003 WL 22053105, at *3~ Apple's close
relationship to the iPhone and its software, both legally and
technically -- which are the produce of Apple's own design -- makes
compelling assistance from Apple a permissible and indispensable
means of executing the warrant.
3. The Order does not place an unreasonable burden on Apple
The Order has also not placed any unreasonable burden on Apple.
Where, as here, compliance with the order would not require
inordinate effort, no unreasonable burden can be found. See New York
Telephone Co., 434 U.S. at 175 (holding that All Writs Act order was
not burdensome because it required minimal effort by the company and
provided for reimbursement for the company's efforts); Mountain Bell,
616 F.2d at 1132 (rejecting telephone company's argument that
unreasonable burden would be imposed because of a drain on resources
and possibility of system malfunctions because the "Order was
extremely narrow in scope, restricting the operation to [electronic
switching system) facilities, excluding the use of manual tracing,
prohibiting any tracing technique which required active monitoring by
company personnel, and requiring that operations be conducted -with a
minimum of interference to the telephone service'").
While the Order in this case requires Apple to provide or employ
modified software, modifying an operating system -- which is
essentially writing software code in discrete and limited manner - is
not an unreasonable burden for a company that writes software code as
part of its regular business.[6] The simple fact of having to create
code that may not now exist in the exact form required does not an
undue burden make. In fact, providers of electronic communications
services and remote computing services are sometimes required to
write some amount of code in order to gather information in response
to subpoenas or other process. Additionally, assistance under the
All Writs Act has been compelled to provide something that did not
previously exist -- the decryption of the contents of devices seized
pursuant to a search warrant. In United States v. Fricosu, 841
F.Supp.2d 1232, 1237 (D. Co. 2012), a defendant's computer -- whose
contents were encrypted -- was seized, and the defendant was ordered
pursuant to the All Writs Act to assist the government in producing a
copy of the unencrypted contents of the computer. Here, the type of
assistance does not even require Apple to assist in producing the
unencrypted contents; the assistance is rather to facilitate the
FBI's attempts to test passcodes.
[Footnote 6: Additionally, the Order provides that Apple may request
reasonable reimbursement for expenses incurred in complying with the
Order.]
As noted above, Apple designs and implements all of the features
discussed, writes and cryptographically signs the iOS, routinely
patches security or functionality issues in its operating system, and
releases new versions of its operating system to address issues. By
comparison, writing a program that turns off non-encryption features
that Apple was responsible for writing to begin with would not be
unduly burdensome. At no point has Apple ever said that it does not
have the technical ability to comply with the Order, or that the
Order asks Apple to undertake an unreasonably challenging software
development task. On this point, Apple's silence speaks volumes.
Moreover, contrary to Apple's recent public statement that the
assistance ordered by the Court "could be used over and over again,
on any number of devices" and that "[t]he government is asking Apple
to hack our own users," the Order is tailored for and limited to this
particular phone. And the Order will facilitate only the FBI's
efforts to search the phone; it does not require Apple to conduct the
search or access any content on the phone. Nor is compliance with
the Order a threat to other users of Apple products. Apple may
maintain custody of the software, destroy it after its purpose under
the order has been served, refuse to disseminate it outside of Apple,
and make clear to the world that it does not apply to other devices
or users without lawful court orders. As such, compliance with the
Order presents no danger for any other phone and is not "the
equivalent of a master key, capable of opening hundreds of millions
of locks."
To the extent that Apple claims that the Order is unreasonably
burdensome because it undermines Apple's marketing strategies or
because it fears criticism for providing lawful access to the
government, these concerns do not establish an undue burden. The
principle that "private citizens have a duty to provide assistance to
law enforcement officials when it is required is by no means foreign
to our traditions." New York Telephone 434 U.S. at 176 n.24. Apple
is not above the law in that regard, and it is perfectly capable of
advising consumers that compliance with a discrete and limited court
order founded on probable cause is an obligation of a responsible
member of the community. It does not mean the end of privacy. As
discussed above, the Order requires Apple to assist only in
facilitating proper, legal access based on a finding of probable
cause. Further, the government is not seeking to "brcak" Apple's
encryption infrastructure or unlawfully violate the privacy of its
customers. Instead, through proper legal process through the Court,
the government is seeking to use capabilities that Apple has
purposefully retained in a situation where the former user of the
phone is dead and no longer has any expectation of privacy in the
phone, and the owner of the phone consents both to the search of the
phone and to Apple's assistance thereto.
More generally, the burden associated with compliance with legal
process is measured based on the direct costs of compliance, not on
other more general considerations about reputations or the
ramifications of compliance. See In re XXX, 2014 WL 5510865, at *2.
For example, an All Writs Act order may be used to require the
production of a handwriting exemplar, see United States v. Li, 55
F.3d 325, 329 (7th Cir. 1995), even though the subject may face
criminal sanctions as a result of his compliance. Apple's
speculative policy concerns regarding possible consequences from
compliance with the Order in this matter merit little weight,
particularly when complying with a court order based on a warrant
serves the ends of justice and protects public safety in furthering
the investigative aims of a terrorism investigation.
4. Apple's assistance is necessary to effectuate the warrant
Apple's assistance is also necessary to effectuate the warrant.
In New York Telephone Co., the Court held that the order met that
standard because "[t]he provision of a leased line by the Company was
essential to the fulfillment of the purpose -- to learn the identities
of those connected with the gambling operation -- for which the pen ~
register order had been issued." 434 U.S. at 175. The Order issued
here also meets this standard, as it is essential to ensuring that
the government is able to execute the warrant.
In this case, the ability to perform the search ordered by the
warrant on the SUBJECT DEVICE is of critical importance to an ongoing
terrorism investigation. The user of the phone, Farook, is a mass
murderer who caused the death of a large number of his coworkers and
the shooting of many others, and who built bombs and hoarded weapons
for this purpose. The FBI has been able to obtain several iCloud
backups for the SUBJECT DEVICE, and executed a warrant to obtain all
saved iCloud data associated with the SUBJECT DEVICE. Evidence in
the iCloud account indicates that Farook was in communication with
victims who were later killed during the shootings perpetrated by
Farook on December 2, 2015, and toll records show that Farook
communicated with Malik using the SUBJECT DEVICE. Importantly,
however, the most recent backup of the iCloud data obtained by the
government was dated October 19, 2015, approximately one and a half
months before the shooting. As such, there may be relevant, critical
communications and data around the time of the shooting that may
reside solely on the SUBJECT DEVICE and can only be obtained if the
government is able to search the phone as directed by the warrant.
Moreover, as discussed above, Apple's assistance is necessary
because without the access to Apple's software code and ability to
cryptographically sign code for the SUBJECT DEVICE that only Apple
has, the FBI cannot attempt to determine the passcode without fear of
permanent loss of access to the data or excessive time delay.
Indeed, after reviewing a number of other suggestions to obtain the
data from the SUBJECT DEVICE with Apple, technicians from both Apple
and the FBI agreed that they were unable to identify any other
methods - besides that which is now ordered by this Court - that are
feasible for gaining access to the currently inaccessible data on the
"SUBJECT DEVICE.[7] There can thus be no question that Apple's
assistance is necessary, and that the Order was therefore properly
issued.
[Footnote 7: The four suggestions that Apple and the FBI discussed (and
their deficiencies) were: (1) to obtain cell phone toll records for
the SUBJECT DEVICE (which, while the government has of course done
so, is insufficient because there is far more information on the
SUBJECT DEVICE than simply toll records) ; (2) to determine if any
computers were paired with the SUBJECT DEVICE to obtain data (which
the government has determined that none were) ; (3) to attempt an
auto-backup of the SUBJECT DEVICE with the related iCloud account
(which would not work in this case because neither the owner nor the
government knew the password to the iCloud account, and the owner, in
an attempt to gain access to some information in the hours after the
attack, was able to reset the password remotely, but that had the
effect of eliminating the possibility of an auto-backup) ; and (4)
obtaining previous back-ups of the SUBJECT DEVICE (which the
government has done, but is insufficient because these backups end on
October 19, 2015, nearly one-and-a-half months prior to the IRC
shooting incident, and also back-ups do not appear to have the same
amount of information as is on the phone itself) . After subsequent
conversations, though, Apple conceded that none of these suggestions
would work to execute the search warrant or to sufficiently obtain
the information sought.]
5. Apple's Potential Marketing Concerns Provide
Insufficient Grounds to Disregard a Duly Issued Court
Order Following a Warrant Based on a Finding of
Probable Cause
To the extent that Apple objects on the grounds that it would
undermine its marketing strategy to comply with this Court's Order,
or that it has an overall objection to anything that enables lawful
access by the government to encrypted information, the government
believes these objections are irrelevant and not legally cognizable
before this Court.
First, in this case, the government seeks to search the SUBJECT
DEVICE pursuant to a validly-issued search warrant, and a validly-
issued All Writs Act Order. The government shares Apple's stated
concern that "information needs to be protected from hackers and
criminals who want to access it, steal it, and use it without our
knowledge or permission." See Exhibit 1. The order at issue does
not compromise that interest. This is not a situation of protecting
the owner and user of this particular device against unauthorized or
unlawful access - here, the owner consented to the government
accessing it. Nor is it about protecting Apple's customers from the
government "intercept[ing] [their] messages, access[ing) [their]
health records or financial data, track[ing] [their] location, or
even access [their] phone's microphone or camera without [their)
knowledge" or from "hackers and criminals who want to access
[personal information], steal it, and use it without our knowledge or
permission." What is at stake are two judicially issued orders: one
based on a finding of probable cause, approved by this Court,
permitting the government to search one telephone of an individual
suspected of being involved in a terrorist attack that killed 14
Americans and wounded 22 others on our own soil, the other directing
Apple to provide limited assistance it is uniquely qualified to
provide to effectuate that order.
Second, the assistance ordered is not a "back door" or a "hack"
to all of Apple's encryption software. That is an unwarranted and
inaccurate characterization. As was made plain in the government's
application for the All Writs Act Order, the government asks that
Apple assist in the execution of a search warrant using the
capabilities that Apple has retained along within its encryption
software, such that the government can attempt to determine the
passcode without the additional, non-encryption features that Apple
has coded into its operating system, for the SUBJECT DEVICE only. In
sum, the government seeks the ability to make multiple attempts at
determining the passcode without risk that the data subject to search
under the warrant would be rendered permanently inaccessible after 10
wrong attempts. This aspect of the Order is no more or less than
what a user has the ability to do if the auto-erase function is
turned off. Moreover, the software required is no more of a "hack"
or a provision of dangerous malware than any update Apple or other
providers send to a phone. Indeed, it is less so because the
software requested would not reside permanently on the SUBJECT
DEVICE, and Apple can retain control over it entirely. The Order
does nothing regarding the encryption aspect of the operating
software, but instead implicates only the non-encryption additional
features that Apple has programmed.
Moreover, to the extent that Apple has concerns about turning
over software to the government so that the government can run the
passcode check program, the Order permits Apple to take possession of
the SUBJECT DEVICE to load the programs in its own secure location,
similar to what Apple has done for years for earlier operating
systems, and permit the government to make its passcode attempts via
remote access. In this fashion, just as with Apple's own already-
existing operating systems and software, no one outside Apple would
have access to the software required by the Order unless Apple itself
chose to share it. This eliminates any danger that the software
required by the Order would go into the "wrong hands" and lead to
criminals' and bad actors' "potential to unlock any iPhone in
someone's physical possession."
Third, marketing or general policy concerns are not legally
cognizable objections to the Order. As discussed above, the analysis
of whether a court order presents an unreasonable burden is focused
on the direct costs of compliance, not whether the party strongly
disagrees with the concept of complying. This Court should not
entertain an argument that fulfilling basic civic responsibilities of
any American citizen or company -- complying with a lawful court order
- could be obviated because that company prefers to market itself as
providing privacy protections that make it infeasible to comply with
court-issued warrants.
6. Public Policy Favors Enforcing of the Order
Strong public policy interests favor enforcing the All Writs Act
Order in this matter. In New York Telephone Co., the Supreme Court
emphasized "the clear indication by Congress that the pen register is
a permissible law enforcement tool." 434 U.S. at 176. Here, this
matter involves the most fundamental investigative tool of all, the
search warrant. Its use is enshrined in the text of the Constitution
and explicitly endorsed by Congress. See U.S. Const. amend. IV ("no
Warrants shall issue, but upon probable cause"); 18 U.S.C. � 3103a(a)
("a warrant may be issued to search for and seize any property that
constitutes evidence of a criminal offense") . Recently, in Riley v.
California, 134 5. Ct. 2473, 2495 (2014), the Supreme Court set the
standard for what law enforcement must do to search a cell phone
seized incident to arrest: "get a warrant." Here, the government
has obtained a warrant to search the phone of a mass murderer, but
unless this Court enforces the Order requiring Apple's assistance,
the warrant will be meaningless.
B. Congress has Not Limited this Court's Authority to Issue an
All Writs Act Order to Apple
Based on the government's discussions with Apple, Apple's public
statement, and the litigation pending in the Eastern District of New
York, it appears Apple is arguing that it is justified in refusing to
comply with the Order because the All Writs Act has been limited by
Congress. This argument fails because there is no statute that
specifically addresses the issue of Apple's assistance, and the
absence of such a specific statute cannot be read as a decision to
limit existing authority. Thus, the Order was an appropriate
execution of this court's jurisdiction in this matter.
1. No statute addresses data extraction from a passcode locked cell phone
The Supreme Court has made clear that "[t]he All Writs Act is a
residual source of authority to issue writs that are not otherwise
covered by statute[,]" such that courts may not rely on the All Writs
Act "[w]here a statute specifically addresses the particular issue at
hand[.IJ" Pennsylvania Bureau of Correction, 474 U.S. at 43. In this
case, no other statute addresses the procedures for requiring Apple
to extract data from a passcode-locked iPhone, so Pennsylvania Bureau
of Correction provides no basis for denying the government's
application for an All Writs Act Order in this case.
In particular, neither Federal Rule of Criminal Procedure 41 nor
the Communications Assistance for Law Enforcement Act ("CALEA") , 47
U.S.C. � 1002, "specifically addresses" -- or even vaguely addresses --
the duty of Apple to assist in extracting data from a passcode-locked
cell phone in order to permit the government to execute a validly
issued search warrant. CALEA requires telecommunications carriers to
retain the capability to comply with court orders for real-time
interceptions and call-identifying information (data "in motion").[8]
Id. By contrast, this case involves evidence already stored on a
cell phone (data "at rest") . Here, Apple is not acting as a
telecommunications carrier, and the Order concerns access to stored
data rather than real-time interceptions and call-identifying
information. Put simply, CALEA is entirely inapplicable to the
present dispute and does not limit this Court's authority under the
All Writs Act to require Apple to assist the government in executing
a search warrant.[9]
[Footnote 8: For example, for the contents of communications, CALEA
28 requires telecommunications carriers to be able "to intercept" wire
and electronic communications carried by the carrier. 47 U.S.C.
� 1002 (a) (1) . CALEA incorporates the definition of "intercept" from
the Wiretap Act, see 47 U.S.C. � 1001(1) & 18 U.S.C. � 2510(4), and
that definition encompasses only information acquired during
transmission, not while it is in storage. Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868, 877-878 (9th Cir. 2002).]
[Footnote 9: Furthermore, nothing in CALEA prevents a court from ordering a
telecommunications carrier to decrypt communications that the carrier
is capable of decrypting. See 47 U.S.C. 1002(b)(3). When Congress
enacted CALEA, it understood that existing provider-assistance
provisions required a provider to decrypt communications when it was
able to do so. Both the House and Senate reports for CALEA stated
that "telecommunications carriers have no responsibility to decrypt
encrypted communications that are the subject of court-ordered
wiretaps, unless the carrier provided the encryption and can decrypt
it." H.R. Rep. No. 103-827(I), at 24 (1994); S. Rep. No. 103-402, at
24 (1994).]
New York Telephone Co. further illustrates that it is
appropriate for a court to rely on the All Writs Act unless a statute
specifically addresses the particular issue at hand. When the Court
decided New York Telephone Co. in 1977, Congress had enacted Title
III for intercepting the contents of communications, but it had not
yet enacted the closely-related pen register statute for acquiring
non-content information. See Electronic Communications Privacy Act
of 1986 � 301, 100 Stat. 1848 (enacting pen register statute)
Despite the existence of a statute regulating government access to
information closely related to pen registers, but not specifically
addressing pen registers, the Supreme Court held that an All Writs
Act order could be issued in support of a warrant for a pen register.
Under this reasoning, CALEA is no barrier to the Order in this case.
2. Congressional inaction does not deprive courts of
their authority under the All Writs Act
The current lack of congressional action regarding encryption-
related issues does not deprive this Court of its authority to issue
the Order in this case. Under Pennsylvania Bureau of Correction,
courts may not rely on the All Writs Act where "a statute
specifically addresses" an issue. But the opposite is not true.
Courts may not categorically refuse to rely on the All Writs Act - as
Apple would seemingly want the Court to do - where Congress has
declined to legislate. Court authority to issue All Writs Act orders
in support of warrants has been clearly established since the Supreme
Court decided New York Telephone Co. in 1977. Congress may choose to
expand or limit this authority, but it must do so through enactment
of legislation.
The Supreme Court and the Ninth Circuit have repeatedly
cautioned that "Congressional inaction lacks persuasive significance
because several equally tenable inferences may be drawn from such
inaction[.J" General Construction Company v. Castro, 401 F.3d 963,
970-71 (9th Cir, 2005) (quoting Central Bank of Denver v. First
Interstate Bank of Denver, 511 U.S. 164, 187 (1994)); see also United
States v. Craft, 535 U.S. 274, 287 (2002)
Here, there are many possible explanations for congressional
inaction on encryption, including that Congress is satisfied with
existing authorities, or that Congress has not yet reached agreement
on whether or how much to expand existing authorities. These
possibilities provide no basis for restricting legal authorities that
existed before the beginning of the debate.[10] Because courts do not
lose an authority to issue orders under the All Writs Act merely
because Congress does not subsequently enact legislation endorsing or
expanding that authority, this Court retains authority to issue an
All Writs Act Order consistent with New York Telephone Co.
[Footnote 10: Granting legal force to statements or proposals by individual
members of Congress during the course of congressional debate risks
absurd results. Congress routinely debates and fails to act on
important issues, but the mere debate does not restrict existing
legal authority. Under the Constitution, Congress speaks with legal
force only when it speaks as one body, through bicameralism and
presentment -- i.e. when it passes a bill.]
IV. CONCLUSION
This Court issued a valid Order pursuant to the All Writs Act
requiring Apple to assist the United States in enabling the search
for evidence pursuant to a lawful search warrant. Apple has publicly
stated that it will oppose this Order, and has not agreed to comply.
For the foregoing reasons, the government respectfully requests that
this Court issue an Order compelling Apple to comply.
EXHIBIT 1
(See http://www.apple.com/customer-letter/)
CERTIFICATE OF SERVICE
I, REBECCA EVANS, declare
That I am a citizen of the United States and resident or employed in Riverside County, California; that my business address is the Office of United States Attorney, 3403 Tenth Street, Suite 200, Riverside, CA 92501; that I am over the age of eighteen years, and am not a party to the above-entitled action; That I am employed by the United States Attorney for the Central District of California who is a member of the Bar of the United States District Court for the Central District of California, at whose direction I served a copy:
GOVERNMENT'S MOTION TO COMPEL APPLE INC. TO COMPLY WITH THIS COURT'S
FEBRUARY 16, 2016 ORDER COMPELLING ASSISTANCE IN SEARCH: EXHIBIT
[X] By electronic mail as follows:
Mr. Theodore B. Olson
Gibson, Dunn & Crutcher LLP
tolson at gibsondunn.com
Mr. Theodore J. Boutrous Jr.
Gibson, Dunn & Crutcher LLP
tboutrous at gibsondunn.com
Ms. Nicola T. Hanna
Gibson, Dunn & Crutcher LLP
nhanna at gibsondunn.com
Mr. Eric D. Vandevelde Gibson, Dunn & Crutcher LLP
evandevelde at gibsondunn.com
This Certificate is executed on February 19, 2016,in Riverside, California. I certify under penalty of perjury that the foregoing is true and correct.
REBECCA EVANS
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