You Be the Judge: The Dispute Between Apple and The FBI/DOJ

Under the Constitution, the federal courts are courts of “limited jurisdiction,” which essentially means that, in the absence of a specifically delineated judicial power provided under the Constitution or federal law, the federal courts have no authority to grant relief to a petitioning party, no matter how dire the circumstance or the need for the relief requested. But there is a statute – the All Writs Act (“AWA”) – that has been on the books for over two centuries and that has been a source of controversy and debate over precisely what is meant by the concept of limited jurisdiction, particularly when matters are brought before the court that arguably raise matters of national security. Under the AWA, “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). This relatively simple and short statutory phrase, which the United States Supreme Court has described as “a residual source of authority to issue writs that are not otherwise covered by statute,” has proven to be a fertile ground for litigation, most recently in the San Bernardino massacre.

On December 2, 2015, a holiday party for the San Bernardino County Department of Public Health (the “Department”) was interrupted when two ISIS-inspired terrorists armed with semiautomatic rifles and pistols sprayed attendants with bullets, leaving 14 dead and nearly two dozen wounded. The assailants, Syed Rizwan Farook, who worked for the Department, and his wife Tashfeen Malik, died later that evening during a shoot-out with law enforcement.

In the wake of this bloodbath, numerous warrants were issued to facilitate the FBI’s investigation of the incident, including warrants to search Farook’s and Malik’s digital devices and online accounts. Through these warrants, the FBI discovered information that provided context for the couple’s savagery, like a statement that Malik posted on her Facebook page the morning of the massacre, pledging allegiance to the leader of ISIS The FBI also seized from Farook’s car an iPhone that he used for work. The FBI believed that the iPhone may reveal persons with whom Farook and Malik may have communicated to plan and carry out the mass murder, locations to and/or from which Farook and Malik may have traveled before and after the shootings, and other details about the incident. The Department, which owned the device, consented to its search, but iPhones and the operating system on which they run are equipped with a variety of security features that prevented the FBI from accessing the data stored on the device. Three of these security features are particularly relevant to this discussion.

First, iPhones “lock.” In other words, they are secured by a user-determined passcode. Second, the operating system for this iPhone model contains “auto-erase” functionality, which if enabled would render the content on the device permanently inaccessible after 10 consecutive, but unsuccessful, attempts to enter the passcode. Third, the operating system for this iPhone model uses a “large iteration count” to slow attempts to access the device. Under this process, each time a user enters an incorrect passcode, a certain period of time must elapse before the operating system will allow the user to make another attempt, and the duration of these “waiting periods” increases with each failed attempt. Use of a “large iteration count” ensures that it would take literally years to try all combinations of a six character alphanumeric passcode.

Because these security features were preventing the FBI from accessing the content on Farook’s locked iPhone, the FBI requested that Apple, the manufacturer of the device, create software to disable these features. When Apple declined the request, the Department of Justice (the “DOJ”) applied for and received an ex parte order compelling Apple to provide “reasonable technical assistance to assist law enforcement agents in obtaining access to the data on [Farook’s iPhone]” (“Ex Parte Order”). The court explained that Apple’s “reasonable technical assistance” must accomplish the following three important functions: (1) bypass or disable the autoerase function, whether or not it has been enabled; (2) enable the FBI to electronically submit passcodes to Farook’s iPhone to determine the correct passcode by “brute force”; ⁱ and (3) ensure that when the FBI submits passcodes, software running on the device will not introduce any additional delays between passcode attempts. The court further explained that Apple could comply with the Ex Parte Order by some “alternate technological means,” if the DOJ concurred, and indicated that Apple could seek relief from the Ex Parte Order to the extent Apple believed compliance would be unreasonably burdensome.

Apple and the DOJ filed cross-motions, with Apple moving to vacate the Ex Parte Order and the DOJ moving to compel Apple’s compliance with it. Before the court was able to hear these motions, however, the FBI was able to “unlock” Farook’s iPhone using software provided by another technology company. As a result, the parties’ motions were moot, and the hearing dates for those motions were vacated. But this disposition of the parties’ dispute leaves key issues unresolved, including the threshold question of whether the AWA – the statute the DOJ relied on to obtain the Ex Parte Order – provides the appropriate legal framework within which to balance the FBI’s interest in investigating terror, on the one hand, and Apple’s interest in maintaining the integrity of its intellectual property and in safeguarding consumers’ privacy rights, on the other hand.ⁱⁱ

As noted, the AWA provides 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). The AWA has been on the books for more than two centuries, and the United States Supreme Court has described it as “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). Some courts have relied on the AWA to compel third parties to provide purportedly “non-burdensome” technical assistance to law enforcement personnel. See, e.g., U.S. v. New York Tel. Co., 434 U.S. 159 (1977) (compelling telephone company to implement pen register and trap and trace device); In re U.S. for an Order Directing a Provider of Communication Services to Provide Technical Assistance to Agents of the U.S. Drug 17 Spring 2016 Newsletter Enforcement Administration, 2015 WL 5233551 (D.P.R. Aug. 27, 2015) (compelling provider of electronic communications services to facilitate recording of electronic communications to and from mobile phone); Application of U.S. for an Order Authorizing an In-Progress Trace of Wire Comm’ns over Tel. Facilities (“Mountain Bell”), 616 F.2d 1122, 1132-1133 (9th Cir. 1980) (affirming order compelling telephone company to trace telephone calls); U.S. v. Hall, 583 F. Supp. 717, 722 (E.D. Va. 1984) (compelling credit card company to produce customer records); In re Application of U.S. for an Order Directing X to Provide Access to Videotape, 2003 WL 22053105, at *3 (D. Md. Aug. 22, 2003) (compelling phone company to assist with monitoring of phone calls).

In U.S. v. New York Telephone Co., 434 U.S. 159, 174-175 (1977), the United States Supreme Court identified three factors that must be considered in determining whether, under the AWA, a third party may be compelled to assist law enforcement with warrants: (1) whether the third party is “so far removed from the underlying controversy that its assistance could not be permissibly compelled”; (2) whether the order would place an undue burden on the third party; and (3) whether the assistance of the third party is necessary to achieve the purpose of the warrant. Applying these factors, the Court in New York Telephone affirmed an order compelling the telephone company to install a pen register (a device that records dialed numbers) on two telephones.

If the parties’ motions had been heard, would these three factors have supported the Ex Parte Order compelling Apple to create software to disable the security features on Farook’s iPhone? Not surprisingly, Apple and the DOJ came to different conclusions on this question. The DOJ argued that the New York Telephone factors weighed in favor of the Ex Parte Order because: Apple is sufficiently connected to the underlying controversy, as it retains exclusive control over the software that can be used on iPhones; creating software to defeat the iPhone’s safety features would not impose an unreasonable burden on Apple, since it is one of the most tech-savvy companies in the world; and the FBI cannot carry out the search of Farook’s iPhone without Apple’s assistance.

Apple disagreed, contending the three factors did not support the Ex Parte Order. Apple argued that it had no connection to the underlying controversy, as it did not own or possess Farook’s phone, and had no connection to the data on that phone or to the events giving rise to the FBI’s investigation; that the Ex Parte Order imposed an unreasonable burden because it compelled Apple to write new code, rather than simply disable existing functionality; and that the FBI failed to demonstrate that it had exhausted other avenues for recovering information from Farook’s iPhone.

You be the judge. Which side had the better argument? Does the AWA’s analytical framework strike the right balance between law enforcement’s interest in investigating terrorist activity and preventing future attacks, and Apple’s interests in maintaining the integrity of its operating systems and in safeguarding its customers’ privacy interests? The eNewsletter Committee invites you to weigh in; you can post comments here, or you can tweet at us or visit us on Facebook.

ⁱ “Brute force” refers to an application that attempts to “crack” a passcode by cycling through all possible combinations of alphanumeric characters, in sequence and at the  speed of a modern computer.
ⁱⁱ The parties also considered the applicability of the Communications Assistance for Law Enforcement Act (“CALEA”) and whether the Ex Parte Order violated the First Amendment, but a discussion of these legal theories is beyond the scope of this article.

Karen Henry is Counsel at Davis Wright Tremaine’s Los Angeles office. Litigating in state and federal court, Karen maintains a broad and diverse practice, focusing primarily on media, IP, and entertainment law. In her practice, she defends clients in a range of matters, including copyright, trademark, right-of-publicity, theft of ideas, defamation, and invasion of privacy litigation.
For more info about Karen, click here.



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