Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 1 of 35 Page ID #:1
`Case 5:16—cm—OOO10—SP Document 1 Filed 02/19/16 Page 1 of 35 Page ID #21
`
`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
`
`5
`
`7%
`
`312 North Spring Street
`Los Angeles, California 90012
`Telephone:
`(213) 894-0622/2435
`Facsimile:
`(213) 894-8601
`Email:
`Tracy.Wilkison@usdoj.gov
`Allen.Chiu@usdoj.gov
`
`Attorneys for Applicant
`UNITED STATES OF AMERICA
`
`UNITED STATES DISTRICT COURT
`
` 90=0HéV6!83:19i0Z
`
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`CA4,
`léw‘ IC?
`ED No. A
`
`(SP)
`
`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
`
`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
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`The United States of America, by and through its counsel of
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`record,
`
`the United States Attorney for the Central District of
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`California, and Assistant United States Attorneys Tracy L. Wilkison
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`and Allen W. Chiu, hereby files its Motion to Compel Apple Inc.
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`(“Apple”)
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`to Comply with this Court's February 16, 2016 Order
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`Compelling Apple To Assist Agents In Its Search.
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`10
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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 2 of 35 Page ID #:2
`Case 5:16—cm—OOO10—SP Document 1 Filed 02/19/16 Page 2 of 35 Page ID #2
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`This Motion is based upon the attached memorandum of points and
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`authorities,
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`the attached exhibit,
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`the files and records in this case
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`including the application and order compelling Apple to assist the
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`FBI and the underlying search warrant, and such further evidence and
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`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
`
`rm/3 WILKISON
`
`ALLEN W. CHIU
`
`Assistant Unitedhfltates Attorneys
`
`Attorneys for Applicant
`UNITED STATES OF AMERICA
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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 3 of 35 Page ID #:3
`Case 5:16—cm—OOO10—SP Document 1 Filed 02/19/16 Page 3 of 35 Page ID #23
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`DESCRIPTION
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES .
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`MEMORANDUM OF POINTS AND AUTHORITIES .
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`I.
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`INTRODUCTION .
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`II.
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`STATEMENT OF FACTS .
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`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 .
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`. ..7
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`A.
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`This Court's All Writs Act Order is Lawful and Binding.
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`..7
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`The All Writs Act .
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`Apple is not “far removed" from this matter .
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`The Order does not place an unreasonable burden
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`Apple's assistance is necessary to effectuate the
`warrant .
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`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 .
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`6.
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`Public Policy Favors Enforcing of the Order .
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`B.
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`Congress has Not Limited this Court's Authority to
`Issue an All Writs Act Order to Apple .
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`No statute addresses data extraction from a
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`Congressional inaction does not deprive courts of
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`IV.
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`CONCLUSION .
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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 4 of 35 Page ID #:4
`case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 4 of 35 Page ID #:4
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`TABLE OF AUTHORITIES
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`DESCRIPTION
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`FEDERAL CASES
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`Central Bank of Denver v. First Interstate Bank of Denver,
`511 U.S. 164 (1994) .
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`General Construction Companx v. Castro,
`401 F.3d 963 (9th Cir. 2005) .
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`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 *4—5
`(D.P.R. Aug. 27, 2015) .
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`In re Ap lication 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) .
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`. ..passim
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`In re Application of United States for an Order Directin X to
`Provide Access to Videota es
`(Access to Videotapes),
`2003 WL 22053105, at *3
`(D. Md. Aug. 22, 2003)
`(unpublished) .
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`to Assist in the Execution
`Inc.
`In re Order Reguiring [XXX],
`of a Search Warrant Issued by This Court QX Unlocking a
`Cellphone (In re XXX), 2014 WL 5510865, at *2 (S.D.N.Y.
`Oct. 31, 2014) .
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`Hawaiian Airlines,
`Konop v.
`302 F.3d 868
`(9th Cir.
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`Pennsylvania Bureau of Correction V. United States Marshals
`Service,
`474 U.S. 34
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`(1985) .
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`Plum Creek Lumber Co. v.
`608 F.2d 1283
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`Inc.,
`2002) .
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`Hutton,
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`Riley v. California,
`134 S. Ct. 2473 (2014) .
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`United States V. Catoggio,
`698 F.3d 64
`(2d Cir. 2012) .
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`United States v.
`535 U.S. 274
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`Craft,
`(2002) .
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`United States V. Fricosu,
`841 F.Supp.2d 1232 (D. CO.
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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 5 of 35 Page ID #:5
`Case 5:16—cm—OOO10—SP Document 1 Filed 02/19/16 Page 5 of 35 Page ID #25
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`United States V. Hall,
`583 F. Supp. 717 (E.D. Va. 1984) .
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`United States v. Li,
`55 F.3d 325, 329 (7th Cir. 1995) .
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`United States V. Navarro,
`NO. 13—CR~5525, ECF NO. 39 (W.D. Wa. NOV. 13, 2013) .
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`United States V. New York Teleghone Co.,
`434 U.S. 159 (1977) .
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`FEDERAL STATUTES
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`18
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`U.S.C.
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`18
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`U.S.C.
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`§ 2510 .
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`

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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 6 of 35 Page ID #:6
`Case 5:16—cm—OOO10—SP Document 1 Filed 02/19/16 Page 6 of 35 Page ID #:6
`
`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,
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`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
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`iPhone.
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`The Federal Bureau of Investigation (“FBI”)
`
`recovered that
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`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
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`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.
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`1O
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`

`
`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 7 of 35 Page ID #:7
`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 7 of 35 Page ID #:7
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`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
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`iPhone; it does not provide “hackers and criminals" access to
`
`iPhones; it does not require Apple to “hack [its] own users” or to
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`“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
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`information.
`
`gee Exhibit 1.
`
`To the contrary,
`
`the Order allows Apple
`
`to retain custody of its software at all times, and it gives Apple
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`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
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`number of orders issued pursuant to the All Writs Act to facilitate
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`the execution of search warrants on Apple devices running earlier
`
`versions of iOS.l 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
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`statements by Apple, Apple's current refusal to comply with the
`
`Court's Order, despite the technical feasibility of doing so,
`
`instead
`
`1 Apple's Legal Process Guidelines continue to state that Apple
`will provide assistance with unlocking devices running iOS 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 § III(I)
`(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.
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`2
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`

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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 8 of 35 Page ID #:8
`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 8 of 35 Page ID #28
`
`appears to be based on its concern for its business model and public
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`brand marketing strategy.2
`
`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
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`burdensome, it may make an application to this Court for relief
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`within five business days of receipt of the Order," Apple's public
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`statement makes clear that Apple will not comply with the Court's
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`Order.
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`The government does not seek to deny Apple its right to be
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`heard, and expects these issues to be fully briefed before the Court;
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`however,
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`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
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`attack must move forward.
`
`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,
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`the FBI has been investigating the
`
`“Our commitment to
`2 As Apple has stated on its web page,
`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/20140918023950/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.
`
`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.
`
`3
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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 9 of 35 Page ID #:9
`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 9 of 35 Page ID #:9
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`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
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`Malik in that crime.
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`Farook and Malik died later that day in a
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`shoot—out after a pursuit with law enforcement.
`
`Since that time,
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`the FBI has been tirelessly investigating the
`
`precise role of those who may have been involved in the attack. As
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`part of this investigation,
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`the FBI obtained search warrants to
`
`search, among other locations and items,
`
`the digital devices and
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`online accounts of Farook and Malik.
`
`Through those searches,
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`the FBI
`
`has discovered crucial information about
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`the attack.
`
`For example,
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`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 Abu 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
`
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`

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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 10 of 35 Page ID #:10
`ase 5:16—cm—OOO10—SP~ Document 1 Filed 02/19/16 Pagelo of 35 Page ID #:1O
`
`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 SC, Model: A1532, P/N:MGFG2LL/A, S/N:FFMNQ3MTG2DJ,
`
`IMEI:3588200523014l2,
`
`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
`
`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
`
`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.
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`

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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 11 of 35 Page ID #:11
`ase 5:16—cm—OOO10—SP Document 1 Filed 02'/19/16 Page«11 of 35 Page ID #211
`
`shootings on December 2, 2015,
`
`the backup iCloud 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
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`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
`
`6
`
`

`
`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 12 of 35 Page ID #:12
`
` ase 5:16—cm—OOO10—SP» Document 1 Filed 02/19/16 Page12 of 35 Page ID #:12
`
`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 PURSUANT 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.”i
`
`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.
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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 13 of 35 Page ID #:13
`aée 5:16—cm—OOO1O—S~PV Document 1 Filed 02/19/16 Page 13 of 35 Page ID #213
`
`
`
`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
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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 14 of 35 Page ID #:14
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` ase 5:16—cm—OOO10—SP Document 1 Filed O2‘/19/16 Page,14 of 35 Page ID #:14
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`scope electronic intrusions authorized upon a finding of probable
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`cause."
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`434 U.S. at 169.
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`The Court relied upon the authority of a
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`search warrant pursuant to Rule 41 to predicate an All Writs Act
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`order commanding a utility to implement a pen register and trap and
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`trace device — before Congress had passed a law that specifically
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`authorized pen registers by court order. Under New York Telephone
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`Co. and Mountain Bell,
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`the Court had authority pursuant to the All
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`Writs Act to issue the Order.
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`Further, based on the authority given under the All Writs Act,
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`courts have issued orders, similar to the one the Court issued here,
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`that require a manufacturer to attempt to assist in accessing a
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`cellphone's image files so that a warrant may be executed as
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`originally contemplated.
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`gee, gpgp,
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`In re Order Reqpiring [XXX],
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`Inc.
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`to Assist in the Execution of a Search Warrant Issued by This
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`Court by Unlocking a Cellphone (In re XXX), 2014 WL 5510865, at *2
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`(S.D.N.Y. Oct. 31, 2014); see also United States v. Navarro, No. 13-
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`CR—5525, ECF No. 39 (W D. Wa. Nov. 13, 2013). Courts have also
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`issued All Writs Act orders in support of warrants in a wide variety
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`of contexts,
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`including ordering a phone company to assist with a trap
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`and trace device (Mountain Bell, 616 F.2d at 1129); ordering a credit
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`card company to produce customer records (United States v. Hall, 583
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`F. Supp. 717, 722 (E.D. Va. 1984)); ordering a landlord to provide
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`access to security camera videotapes (In re Application of United
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`States for an Order Directing X to Provide Access to Videotapes
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`(Access to Videotapes), 2003 WL 22053105, at *3
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`(D. Md. Aug. 22,
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`2003)(unpublished)); and ordering a phone company to assist with
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`consensual monitoring of a customer's calls (In re Application of the
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`United States for an Order Directing a Provider of Communication
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`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 15 of 35 Page ID #:15
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` ase 5:16—cm—OOO10—SP Document 1 Filed 02/19/16 Page.15 of 35 Page ID #215
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`Services to Provide Technical Assistance to the DEA, 2015 WL 5233551,
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`at *4—5
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`(D.P R. Aug. 27, 2015)).
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`The government is also aware of
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`multiple other unpublished orders in this district and across the
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`country compelling Apple to assist in the execution of a search
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`warrant by accessing the data on devices running earlier versions of
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`iOS, orders with which Apple complied.5
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`In fact, as noted above,
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`Apple has long recognized this application, and has complied with
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`search warrants compelling Apple to extract data from older iOS
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`devices locked with a passcode. Until last year, Apple did not
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`dispute any such order.
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`In New York Telephone Co.,
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`the Supreme Court considered three
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`factors in concluding that the issuance of the All Writs Act order to
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`the phone company was appropriate. First, it found that the phone
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`company was not “so far removed from the underlying controversy that
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`its assistance could not be permissibly compelled.”
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`Id; at 174.
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`Second, it concluded that the order did not place an undue burden on
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`the phone company.
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`gee id; at 175. Third, it determined that the
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`assistance of the company was necessary to achieve the purpose of the
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`warrant.
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`gee id; As set forth below, each of these factors supports
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`the order issued in this case.
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`2.
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`Apple is not “far removed" from this matter
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`First, Apple is not “so far removed from the underlying
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`controversy that its assistance could not be permissibly compelled."
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`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
`In
`issued orders, nor would any such order be binding on this Court.
`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.
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`ase 5:16—cm—OOO10—SP Document 1 Filed 02/19/16 Page 16 of 35 Page ID #216
`Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 16 of 35 Page ID #:16
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`Apple designed, manufactured and sold the SUBJECT DEVICE, and wrote
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`and owns the software that runs the phone — which software is
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`preventing the search for evidence authorized by the warrant.
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`Indeed, Apple has positioned itself to be essential to gaining access
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`to the SUBJECT DEVICE or any other Apple device, and has marketed its
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`products on this basis.
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`§e§, e;g;, Apple's Security Guide,
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`www.apple.com/business/docs/iOS_Security_Guide.pdf. Apple designed
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`and restricts access to the code for the auto—erase function — the
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`function that makes the data on the phone permanently inaccessible
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`after multiple failed passcode attempts. This feature effectively
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`prevents the government
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`from performing the search for evidence
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`authorized by the warrant without Apple's assistance.
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`The same
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`software Apple is uniquely able to modify also controls the delays
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`Apple implemented between failed passcode attempts — which makes the
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`process take too long to enable the access ordered by the Court.
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`Especially but not only because iPhones will only run software
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`cryptographically signed by Apple, and because Apple restricts access
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`to the source code of the software that creates these obstacles, no
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`other party has the ability to assist the government in preventing
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`these features from obstructing the search ordered by the Court
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`pursuant to the warrant.
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`Just because Apple has sold the phone to a
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`customer and that customer has created a passcode does not mean that
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`the close software connection ceases to exist; Apple has designed the
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`phone and software updates so that Apple's continued involvement and
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`connection is required.
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`Apple is also not made “far removed” by the fact that it is a
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`non~government third party. While New York Telephone Co. and
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`Mountain Bell
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`involved public utilities,
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`limiting All Writs Act
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