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Marquette University Law School, The Milwaukee Lawyer Chapter of the American Constitution Society, and The Milwaukee Lawyers Chapter of the Federalist Society
Present a Conference
NATIONAL SECURITY, INDIVIDUAL LIBERTY, AND YOU
with support from the Law School’s Lubar Fund for Public Policy Research
Thursday, June 2, 2016 8:15 a.m. – 1:30 p.m. Marquette University Law School Ray and Kay Eckstein Hall
4 CLE credits Welcome Joseph D. Kearney, Dean and Professor of Law, Marquette University Introduction and Historical Perspective
• Hon. Steven M. Biskupic, Biskupic & Jacobs; Adjunct Professor, Marquette University Law School; and former U.S. Attorney, Eastern District of Wisconsin Session I — National Security and Individual Liberty in a Post-9/11 World
• Faiza Patel, Co-Director, Liberty and National Security Program, Brennan Center for Justice, New York University School of Law • Hon. Michael B. Mukasey, of counsel, Debevoise & Plimpton; former Attorney General of the United States; and former U.S. District Judge, Southern District of New York • Mike Gousha, Distinguished Fellow in Law and Public Policy, Marquette University Law School Break Session II — Local Uses of National Security Tools
• Edward A. Flynn, Chief of the Milwaukee Police Department • Hon. Pamela Pepper, U.S. District Judge, Eastern District of Wisconsin • Steven Biskupic 2
Session III — Meta-Data Collection, the PATRIOT Act, and the Drafting of the USA FREEDOM Act of 2015
• Hon. F. James Sensenbrenner, U.S. Representative, 5th Congressional District of Wisconsin • Mike Gousha Session IV — Post-9/11 Effects on Milwaukee’s Muslim Community
• Janan Najeeb, President, Milwaukee Muslim Women’s Coalition • Mike Gousha Lunch (provided) Session V — The Intersection and Conflict Between National Security and Technology
• Alex Abdo, Staff Attorney, American Civil Liberties Union Speech, Privacy and Technology Project • Stewart A. Baker, Partner, Steptoe & Johnson, and former first Assistant Secretary for Policy, Department of Homeland Security Closing Remarks
Conference Planning Group:
• Steven M. Biskupic • Mike Gousha • Joseph D. Kearney • Jonathan D. Richards • Michael S. Sperling • CJ Szafir
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5/20/2016 Steven M. Biskupic | Biskupic & Jacobs 3
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Steven M. Biskupic
Direct Line: 262-241-0055 [email protected]
Steven is a founding partner and co-owner at Biskupic & Jacobs. His primary focus is governmental regulatory matters (including election law) and complex civil litigation. Prior to starting the firm, Steven spent four years in private practice at one of Milwaukee’s largest law firms, including two years as Chair of the Litigation Practice Group. Prior to that, he served as the U.S. Attorney for the Eastern District of Wisconsin for seven years, and an Assistant U.S. Attorney for 13 years.
Professional Experience
Has personally handled more than 50 jury trials and argued more than 30 http://www.biskupicjacobs.com/steven-m-biskupic/ 1/3 5/20/2016 Steven M. Biskupic | Biskupic & Jacobs federal and state court appeals. 4 Successfully defended at trial a major Wisconsin corporation against a $20 million claim. No liability was found and no damages were awarded. Litigated multiple SEC, EPA, and FTCA matters. While U.S Attorney, secured convictions of more than two dozen corrupt public officials and police officers. As Assistant U.S. Attorney, specialized in bank fraud matters. Served as law clerk for the late Hon. Robert W. Warren (E.D.Wis.).
Honors and Publications
Author of three law review articles and other scholarly writings, including most recently, “Anything But Mickey Mouse: Legal Issues in the 2012 Wisconsin Gubernatorial Recall,” 97 Marquette L. Rev. (2014). Repeatedly named a “Best Lawyers in America” and “Wisconsin Super Lawyer” in the areas of business litigation. Received the Eastern District of Wisconsin Bar Association’s Public Service Award (2008). Earned the U.S. Department of Justice Award for Superior Performance (2000).
Other Activities
Adjunct Professor at Marquette University Law School. Member of Seventh Circuit Bar Association, Eastern District of Wisconsin Bar Association, and Ozaukee Bar Association. Member of St. Thomas More Lawyer’s Society.
Bar Adm issions Illinois, Wisconsin
Court Adm issions Seventh Circuit Court of Appeals Eighth Circuit Court of Appeals Eastern District of Wisconsin Western District of Wisconsin Northern District of Illinois
Education B.A., Marquette University J.D., Marquette University Law School
http://www.biskupicjacobs.com/steven-m-biskupic/ 2/3 5/20/2016 Faiza Patel | Brennan Center for Justice 5
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ISSUES ADVOCACY RESEARCH MEDIA EXPERTS COMMENTARY ABOUT
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Faiza Patel ABOUT Co-Director, Liberty & National Security Program Faiza Patel serves as co-director of the Brennan Center’s Liberty About Us and National Security Program. She has testified before Congress Celebrating Justice Brennan opposing the dragnet surveillance of Muslims, organized advocacy efforts against state laws designed to incite fear of Islam, and Board of Directors developed legislation creating an independent Inspector General Staff for the NYPD. Programs Ms. Patel is the author of five reports: Rethinking Radicalization (2011); A Proposal for an NYPD Inspector General (2012); Foreign Law Bans (2013); What Went Wrong with the FISA Events Court (2015); and Overseas Surveillance in an Interconnected World (2016). She is a frequent commentator on national security and counterterrorism issues for media outlets Get Involved such as The New York Times, The Washington Post, The Economist, The Guardian, MSNBC, Employment Al-Jazeera, NPR, the New York Daily News, and the National Law Journal and has published widely in academic outlets as well. Donate
Before joining the Brennan Center, Ms. Patel worked as a senior policy officer at the Contact Us Organization for the Prohibition of Chemical Weapons in The Hague, and clerked for Judge Sidhwa at the International Criminal Tribunal for the former Yugoslavia. Born and raised in Pakistan, Ms. Patel is a graduate of Harvard College and the NYU School of Law. MEDIA INQUIRIES
For more information or to schedule an interview with one of our experts, please view our Media Inquiries Recent Work page.
The 702 Reform Debate Is Just Heating Up AREAS OF EXPERTISE May 16, 2016 | Blogs Liberty _ National Security Liberty _ National Security
The Human Rights Risks of Countering Violent Extremism Privacy _ Profiling Programs April 7, 2016 | Blogs Transparency _ Accountability Liberty _ National Security Checks _ Balances
Overseas Surveillance in an Interconnected World Detainee Policy March 16, 2016 | Publications Liberty _ National Security, Privacy _ Profiling, Intelligence Reform
http://www.brennancenter.org/expert/faiza-patel 1/3 5/20/2016 Faiza Patel | Brennan Center for Justice 6 Settlement of NYPD Muslim Surveillance Lawsuits: A Platform for Better Oversight January 15, 2016 | Blogs Liberty _ National Security, Privacy _ Profiling, Transparency _ Accountability, Intelligence Reform
Why the Social Media Giants Can't Ever Wipe Out ISIS Propaganda December 10, 2015 | Analysis Liberty _ National Security
Respond to the Real Threats, Not to Fears of One Religion December 4, 2015 | Analysis Liberty _ National Security, Privacy _ Profiling
Bulk Collection Under Section 215 Has Ended... What's Next? November 30, 2015 | Blogs Liberty _ National Security, Intelligence Reform
Can Predictive Policing Be Ethical and Effective? November 18, 2015 | Analysis Justice for All, Liberty _ National Security, Privacy _ Profiling
U.S. Would Be Wrong to Ban Muslim Refugees November 17, 2015 | Analysis Liberty _ National Security
Muslims and American Fear October 25, 2015 | Analysis Liberty _ National Security
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ISSUES ADVOCACY RESEARCH MEDIA ABOUT
VOTING RIGHTS & COURT CASES PUBLICATIONS MEDIA CENTER ABOUT US ELECTIONS POLICY PROPOSALS ANALYSIS PRESS RELEASES CELEBRATING JUSTICE MONEY IN POLITICS BRENNAN LEGISLATION STATEMENTS & TESTIMONY MULTIMEDIA GOVERNMENT & COURT BOARD OF DIRECTORS REFORM NEW CONSTITUTIONAL NEWSLETTERS http://www.brennancenter.org/expert/faiza-patel 2/3 5/20/2016 Read Full Biography - Biography 7
Michael B. Mukasey Of Counsel
New York
Tel: +1 212 909 6589
Michael B. Mukasey, of counsel to the firm, recently served as Attorney General of the United States, the nation’s chief law enforcement officer. As Attorney General from November 2007 to January 2009, he oversaw the U.S. Department of Justice and advised on critical issues of domestic and international law. Judge Mukasey joined Debevoise as a partner in the litigation practice in New York in February 2009, focusing his practice primarily on internal investigations, independent board reviews and corporate governance.
From 1988 to 2006, Judge Mukasey served as a district judge in the United States District Court for the Southern District of New York, becoming Chief Judge in 2000.
From 1972 to 1976, Judge Mukasey served as an Assistant United States Attorney for the Southern District of New York, and as Chief of the Official Corruption Unit from 1975 to 1976. His practice consisted of criminal litigation on behalf of the government, including investigation and prosecution of narcotics, bank robbery, interstate theft, securities fraud, fraud on the government and bribery. From 1976 to 1987 and from 2006 to 2007 he was in private practice.
Judge Mukasey has received numerous honors, including the Federal Bar Council’s Learned Hand Medal for Excellence in Federal Jurisprudence. He served as Chairman of the Committee on Public Access to Information and Proceedings of the New York Bar Association from 1984 to 1987. He served on the Federal Courts Committee of the Association of the Bar of the City of New York from 1979 to 1982 and its Communications Law Committee from 1983 to 1986. Judge Mukasey was also a part-time lecturer at Columbia School of Law from January 1993 to May 2007, teaching trial advocacy.
He received his LL.B. from Yale Law School in 1967 and his B.A. from Columbia College in 1963.
http://www.debevoise.com/michaelmukasey?tab=Biography 1/2 5/20/2016 Read Full Biography - Biography 8 Education
Yale Law School, 1967, LL.B.
Columbia University, 1963, B.A.
Bar Admissions
New York
Practices Litigation
Securities Litigation
White Collar & Regulatory Defense
Corporate Governance
Internal Investigations
International Corruption
Regions US/North America
http://www.debevoise.com/michaelmukasey?tab=Biography 2/2 « Back to Faculty & Staff « Back to Faculty & Staff Directory Directory 9 Micha el Gousha Distinguished Fellow in Law and Public Policy [email protected]
Phone: (414) 288-5232 BIOGRAPHY
Mike Gousha serves as a Distinguished Fellow in Law and Public Policy at Marquette University Law School. An award-winning journalist, Gousha explores important public policy issues, acting in the role of interviewer, moderator and facilitator. He is the host of the Law School's "On the Issues" conversation series, and has been the solo moderator of numerous political debates, including the final debate of Wisconsin's historic 2012 recall election for Governor. In addition, Gousha continues to work as a contributing anchor and political analyst for WISN-TV in Milwaukee. He is the host of the weekly Sunday morning program "Up Front with Mike Gousha," which airs on ABC affiliates statewide.
Gousha has earned numerous national and local honors during his journalism career, including three regional Emmy awards. In 2011, the Chicago chapter of the National Academy of Television Arts and Sciences presented Gousha with its Silver Circle Emmy for his contributions to broadcast journalism. He is a member of the Wisconsin Broadcasters Association Hall of Fame and has received the Associated Press' prestigious Carol Brewer award for outstanding, long-term contributions to broadcast journalism in Wisconsin. The Milwaukee Press Club named him a Knight of the Golden Quill, the club's rarest and highest honor.
Gousha joined Marquette Law School in 2007, after a 25 year career at WTMJ-TV in Milwaukee. During his tenure at WTMJ, Gousha served as lead anchor and host of the popular interview program Sunday Night. As a reporter, he has covered a wide array of local, national and international stories. He traveled to El Salvador and Nicaragua in the 1980s to produce an award-winning series on the flight of refugees to Milwaukee. He has covered Presidential inaugurations and funerals, reported from six national political conventions, and was the moderator and a panelist at the 2004 Democratic Presidential Debate on the Marquette campus.
As host of Sunday Night, Gousha interviewed more than 800 people over 17 years. The roster of guests includes a "who's who" of business, political, and religious leaders, along with actors, athletes, and authors.
Before coming to WTMJ-TV in 1981, Gousha worked at WSAW-TV in Wausau, Wisconsin and at WIBA Radio in Madison. He also worked as a print reporter for the Capital News Bureau in Madison. He joined WISN-TV in January of 2008.
Gousha graduated from the University of Wisconsin-Madison in 1978 with a degree in journalism. He has deep roots in the Milwaukee area and his father was a former superintendent of the Milwaukee Public Schools. 5/20/2016 Pamela Pepper - Wikipedia, the free encyclopedia 10 Pamela Pepper From Wikipedia, the free encyclopedia
Pamela Pepper (born 1964) is a United States District Judge of the United States District Court for the Eastern Pamela Pepper District of Wisconsin and former Chief Bankruptcy Judge of the United States District Court for the Judge of the same court. Eastern District of Wisconsin Incumbent Contents Assumed office December 8, 2014 1 Biography Appointed by Barack Obama 2 Federal judicial service
3 References Preceded by Charles Clevert 4 External links Personal details Born 1964 (age 51–52) New Orleans, Louisiana, U.S. Biography Residence Shorewood, Wisconsin, U.S. Alma mater Northwestern University Pepper received a Bachelor of Science degree in 1986 from Northwestern University. She received a Juris Cornell Law School Doctor in 1989 from Cornell Law School. She began her Marquette University legal career as a law clerk to Judge Frank M. Johnson, Jr. of the United States Court of Appeals for the Eleventh Circuit from 1989 to 1990. She served as an Assistant United States Attorney in the Northern District of Illinois from 1990 to 1994 and in the Eastern District of Wisconsin from 1994 to 1997. From 1997 to 2005, she worked in private practice as a criminal defense attorney, where she handled both trials and appeals in State and Federal courts. Starting in 2005 until 2009, Pepper concurrently served as a bankruptcy judge in the Eastern District of Wisconsin and Southern District of Illinois. From 2009 to 2014 she served solely in the Eastern District of Wisconsin and from 2010 to 2014 she served as Chief Bankruptcy Judge.[1] Federal judicial service
On May 1, 2014, President Obama nominated Pepper to serve as a United States District Judge of the United States District Court for the Eastern District of Wisconsin, to the seat vacated by Judge Charles N. Clevert Jr., who took senior status on October 31, 2012.[2] She received a hearing on her nomination on Tuesday, June 24, 2014.[3] On July 17, 2014 her nomination was reported out of committee by voice vote.[4] On November 18, 2014 Senate Majority Leader Harry Reid filed for cloture on her nomination. On Wednesday November 19, 2014 cloture was invoked by a vote of 58-39.[5] On Thursday, November 20, 2014 the Senate voted 95-0 in favor of final confirmation.[6] She received her judicial commission on December 8, 2014.[7] References https://en.wikipedia.org/wiki/Pamela_Pepper 1/2 5/20/2016 Pamela Pepper - Wikipedia, the free encyclopedia 1. "President Obama Nominates Judge Pamela Pepper to Serve on the United States District Court for the11 Eastern District of Wisconsin" White House, May 1, 2014 (http://www.whitehouse.gov/the-press-office/2014/05/01/presi dent-obama-nominates-judge-pamela-pepper-serve-united-states-distri) 2. "Presidential Nomination Sent to the Senate" White House, May 1, 2014 (http://www.whitehouse.gov/the-press-o ffice/2014/05/01/presidential-nomination-sent-senate) 3. "Nominations" United States Senate Committee on the Judiciary, June 23, 2014 (http://www.judiciary.senate.gov/ meetings/judicial-nominations-2014-06-24) 4. "Results of Executive Business Meeting - July 17, 2014" United States Senate Committee on the Judiciary (htt p://www.judiciary.senate.gov/imo/media/doc/Results%20of%20Executive%20Business%20Meeting%20-%2007- 17-14.pdf) 5. "U.S. Senate Roll Call Votes 113th Congress - 2nd Session". Vote Summary: Vote Number 283. United States Senate. Retrieved 19 November 2014. 6. "U.S. Senate Roll Call Votes 113th Congress - 2nd Session". Vote Summary: Vote Number 288. United States Senate. Retrieved 20 November 2014. 7. "Biographical Directory of Federal Judges". Federal Judicial Center. Retrieved 9 December 2014. External links
Pamela Pepper (http://www.fjc.gov/servlet/nGetInfo?jid=3566&cid=999&ctype=na&instate=na) at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
Legal offices J udge of the United States District Court Preceded by for the Eastern District of Wisconsin Incumbent Charles Clevert 2014–present
Retrieved from "https://en.wikipedia.org/w/index.php?title=Pamela_Pepper&oldid=672902384"
Categories: American jurist stubs 1964 births American women judges American women lawyers Assistant United States Attorneys Cornell Law School alumni Illinois lawyers Judges of the United States bankruptcy courts Judges of the United States District Court for the Eastern District of Wisconsin Living people Marquette University alumni Northwestern University alumni People from New Orleans, Louisiana Lawyers from New Orleans, Louisiana United States district court judges appointed by Barack Obama Wisconsin lawyers
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https://en.wikipedia.org/wiki/Pamela_Pepper 2/2 5/20/2016 Chief of Police 12
Oócial Website of the City of Milwaukee CALL for Action (414) 286-CITY | Click for Action
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Milwaukee Police Department
About MPD Information & Services Police Districts Police Units & Partners Community Liaison Contact MPD Edward A. Flynn was appointed Chief of the Milwaukee Police Department in January of 2008. On January 8, 2016, he was sworn in for a third term. He commands an agency of 2,000 sworn o†ȁcers and 700 civilians, serving a city of over 600,000 residents.
He was formerly Police Commissioner in Springတāeld, Massachusetts from 2006 to 2008. As the police chief executive, he was responsible for 470 o†ȁcers and 100 civilians, serving a city of 155,000 residents.
Flynn served as Secretary of Public Safety under Massachusetts Governor Mitt Romney from January 2003 until taking command in Springတāeld. He was responsible for a secretariat employing 10,000 that included the Massachusetts State Police, the Department of Corrections and the Massachusetts Emergency Management Agency.
Prior to his appointment as Secretary of Public Safety, he served for တāve years as the Chief of Police in Arlington, Virginia. He commanded a 360 o†ȁcer department, serving 190,000 residents. In this capacity, he was instrumental in the recovery eတort at the Pentagon after the September 11, 2001 terrorist attack.
He began his career in the Jersey City Police Department, where he was promoted through the ranks of o†ȁcer, sergeant, lieutenant, captain and inspector. He served as the Chief of Police in Braintree and subsequently Chelsea, Massachusetts.
Flynn is a member of the Police Executive Research Forum. He serves on the Executive Committee of the International Association of Chiefs of Police and Fight Crime Invest in Kids Executive Board. He is a member of the Harvard Kennedy School’s Executive Session on Policing. He is a past recipient of the prestigious Gary Hayes Memorial Award for Police Leadership from the Police Executive Research Forum.
He holds a B.A. in history from LaSalle University in Philadelphia, a Masters degree in Criminal Justice from John Jay College of Criminal Justice in New York and completed all course work in the Ph.D. program in criminal justice from the City University in New York. Chief Flynn is a graduate of the FBI National Academy, the National Executive Institute and was a National Institute of Justice Pickett Fellow at Harvard’s Kennedy School of Government.
Chief Flynn's 2008 Swearing-In Speech
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http://city.milwaukee.gov/Directory/police/About-MPD/Chief.htm#.Vz90MvkrKM8 1/2 5/20/2016 Biography - Congressman Jim Sensenbrenner 13
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ABOUT JIM BIOGRAPHY
F. James Sensenbrenner, Jr., (Jim), represents the Fifth Congressional District of Wisconsin. The Biography Fifth District includes parts of Milwaukee, Dodge and Waukesha counties, and all of Washington and Jefferson counties.
Committee Assignments Jim was born in Chicago and later moved to Wisconsin with his family. He graduated from the Milwaukee Country Day School and did his undergraduate studies at Stanford University, where he majored in 5th District Info political science. He then earned his law degree at the University of Wisconsin-Madison in 1968.
Official Photo After serving ten years in the Wisconsin State Legislature, Jim ran for a U.S. House seat and was elected in November, 1978. He has been QUICK LINKS reelected since 1980.
Jim’s current committee assignments include serving on the Committee on > Email Jim Science and Technology and the Committee on the Judiciary. > Flag Requests Congressman Sensenbrenner is Chairman of the Crime, Terrorism, Homeland Security and Oversight Subcommittee. He is also a member of the Subcommittee on Courts, Intellectual > Visit Washington, D.C. Property, and Internet, and the Subcommittees on Environment and Oversight. > Watch Jim on YouTube He is the former Chairman of the Judiciary Committee, and as a long-serving committee member, > Passport Assistance Jim has established a strong record on crime, intellectual property and constitutional issues. Previously, Jim also served as Chairman of the House Committee on Science, where he solidified > Help with a Federal Agency his reputation as an independent leader on science issues, as well as oversight. > Academy Nomination Throughout his public life, Jim has been at the forefront of efforts to preserve the sanctity of life, > Kids Page eliminate wasteful government spending and protect the interests of American taxpayers. He has > Sign up for News from Jim regularly been cited by the National Taxpayers Union as one of the most fiscally responsible House Members and is well known for completing his financial disclosure forms down to the penny.
Jim is proud of his many legislative achievements that have helped improve the lives of many during his tenure in Congress.
Shortly after the attacks of September 11, Jim introduced the PATRIOT Act in the House as a method to help keep America safe by enhancing the tools our law enforcement officials could use to thwart another terrorist attack. He was proud to watch President Bush sign the Act into law. Following revelations of the National Security Agency’s bulk collection of data and the misinterpretation of Section 215 of the Patriot Act, Jim authored the USA FREEDOM Act – bipartisan, bicameral, and comprehensive legislation to rein in abuse, put an end to bulk collection, increase the transparency of the Foreign Intelligence Surveillance Court and ensure the proper balance between national security and privacy is struck.
He was instrumental in the passing of the Child Abduction Prevention Act, which President Bush signed into law in 2003. This law enhanced the AMBER Alert system, strengthened penalties against kidnappers and aids law enforcement in protecting children.
He also introduced the Adam Walsh Child Protection and Safety Act. This Act, which is now law, expanded coverage of the national sex offender registry, mandates the collection of DNA from sex offenders and forces states to comply with strict requirements to keep the information of sex offenders current.
Throughout his tenure in Congress, Jim has fought to protect the gains made during the Civil Rights Movement. As Judiciary Committee Chairman, he introduced the reauthorization of the Voting Rights Act (VRA), the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006. After approximately 20 hearings, the measure passed with overwhelming bipartisan support. However, the Supreme Court recently struck down a key provision of this law. After that decision, Jim introduced the Voting Rights Amendment Act of 2014, a bipartisan, bicameral modernization of the original 1965 law that ensures Americans' most sacred right is protected. http://sensenbrenner.house.gov/biography/ 1/2 5/20/2016 Biography - Congressman Jim Sensenbrenner In 1977, Jim married Cheryl Warren of Green Bay, Wisconsin, a staunch advocate for the rights14 of the disabled. They have two adult children, Frank and Bob. In his free time, Jim enjoys watching the Packers and reading.
home constituent services issues & legislation media center about jim about wisconsin contact us privacy policy site map
http://sensenbrenner.house.gov/biography/ 2/2 5/20/2016 Board Members and Staff of the Milwaukee Muslim Women's Coalition 15
The MMWC Team
The MMWC Board and Staff
Ms. Janan Najeeb President
Janan Najeeb, a founding member and the current President of the Milwaukee Muslim Women’s Coalition has been a spokeswoman for Milwaukee’s Muslim community to media outlets, government officials, interfaith leaders, academic institutions, hospitals, and a wide range of community groups. A microbiologist by profession (UWMilwaukee), Ms. Najeeb left her career because of the tremendous need to bridge the gap between the erroneous perception of Islam and Muslims in society and the actual beliefs and practices of the vast majority of the world’s Muslims. Ms. Najeeb serves on many committees and community boards as well as being an adjunct professor at Cardinal Stritch University in Milwaukee, teaching the Religious Culture of Islam. In addition, she directs the new Islamic Resource Center on the south side of Milwaukee.
Janan Najeeb is the recipient of numerous awards and recognitions including the International Institute of Wisconsin’s World Citizen Award, The Wisconsin Community Fund’s Grantee of the http://mmwconline.org/mmwc-team.html 2/6 5/20/2016 Board Members and Staff of the Milwaukee Muslim Women's Coalition Year Award, CAIR’s (Council on American Islamic Relations) national award for activism, ACLU’16 s Special Recognition Award, as well as being named by Wisconsin Woman Magazine as a Leader Making a Difference. Ms. Najeeb is married and has 5 children.
http://mmwconline.org/mmwc-team.html 5/20/2016 Alex Abdo | American Civil Liberties Union 17
ALEX ABDO
Staff Attorney, ACLU Speech, Privacy, and Technology Project
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https://www.aclu.org/bio/alex-abdo 1/4 5/20/2016 Alex Abdo | American Civil Liberties Union 18 Alex Abdo (@AlexanderAbdo) is a Staff Attorney in the ACLU's Speech, Privacy and Technology Project. Prior to joining SPT, Alex was an attorney with the National Security Project, where he was involved in the litigation of cases concerning the Patriot Act, the Foreign Intelligence Surveillance Act, the International Emergency Economic Powers Act, and the treatment of detainees in Guantánamo Bay, Afghanistan, Iraq, and the Navy brig in South Carolina. Alex is a graduate of Yale University and Harvard Law School. Prior to working at the ACLU, he served as a law clerk to the Hon. Barbara M.G. Lynn, United States District Judge for the Northern District of Texas, and to the Hon. Rosemary Barkett, United States Circuit Judge for the 11th Circuit Court of Appeals.
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ALEX'S BLOG POSTS
Apple v. FBI: What Just Happened? MARCH 22, 2016
The Real Stakes of Apple’s Fight With the FBI FEBRUARY 18, 2016
The Power of Pictures FEBRUARY 5, 2016
NSA, Unplugged: The Government Finally Stopped Vacuuming Up Our Phone Records NOVEMBER 30, 2015
Forcing Apple into the Service of the Government OCTOBER 27, 2015
https://www.aclu.org/bio/alex-abdo 2/4 5/20/2016 Steptoe & Johnson LLP: Stewart A. Baker - Partner 19
Professionals
Areas of Practice Stewart A. Baker Partner Crisis Management 1330 Connecticut Avenue, NW [email protected] Telecom, Internet & Media Washington DC 20036 vCard Cybersecurity, Privacy & National Security TEL: +1 202 429 6402 Washington Office National and Homeland FAX: +1 202 429 3902 Security CFIUS Foreign Investment Reviews & FOCI Mitigation International Regulation & Compliance International Trade & Investment Export Controls Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He Economic Sanctions International Arbitration returned to the firm following 3½ years at the Department of Homeland Security as its first Appellate & Supreme Court Assistant Secretary for Policy. Congressional Oversight & Investigations At Homeland Security, Mr. Baker created and staffed the 250-person DHS Policy Financial Services Directorate. He was responsible for policy analysis across the Department, as well as for the Department’s international affairs, strategic planning and relationships with law Education enforcement and public advisory committees. This work required a broad understanding UCLA School of Law, J.D., of all aspects of the Department’s activities, including maritime regulation, customs
1976, Alumni Award for enforcement, immigration, identity management, SAFETY Act implementation, money Excellence (first in class), laundering enforcement, government contracts, and regulation of travel and air Chief Articles Editor, UCLA Law Review transportation, and its role in the Committee on Foreign Investment in the United States Brown University, A.B., (CFIUS). 1970 While at DHS, Mr. Baker led successful negotiations with European and Middle Eastern Judicial Clerkships governments over travel data, privacy, visa waiver and related issues. He devised a new approach to visa-free travel, forged a congressional and interagency consensus on the Law Clerk to Justice John Paul Stevens, US Supreme plan and negotiated acceptance with key governments. Court, 1977-78 Law Clerk to Honorable He also managed the passage and implementation of the SAFE Ports Act, led the Frank M. Coffin, US Court Department’s policy effort to reform federal immigration laws, and transformed the of Appeals, First Circuit, Department’s role in CFIUS, helping to drive the first rewrite of the CFIUS law and 1976-77 regulations in a generation. Law Clerk Extern to
Honorable Shirley M. Telecom, Internet & Media http://www.steptoe.com/professionals-Stewart_Baker.html 1/5 5/20/2016 Steptoe & Johnson LLP: Stewart A. Baker - Partner 20 Hufstedler, US Court of Mr. Baker managed one of the nation’s premier technology law practices at Steptoe
Appeals, Ninth Circuit, 1975 before accepting the DHS post. Described by The Washington Post as “one of the most
Bar & Court techno-literate lawyers around,” Mr. Baker’s practice covers national security, electronic Admissions surveillance, law enforcement, export control encryption, and related technology issues. He has been a key advisor on US export controls and on foreign import controls on District of Columbia California technology. He has also advised companies on the requirements imposed by CFIUS. In addition, he was responsible for spearheading the government-private sector coalition Multimedia that permitted major telecommunications equipment manufacturers and carriers to break
Click Here to View. the decade-long deadlock with law enforcement on wiretapping of modern technology, permitting successful implementation of the Communications Assistance for Law Enforcement Act (CALEA).
In 2010 Mr. Baker's memoir of his time at the DHS, Skating On Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism, was published by Hoover Press. Drawing on his experiences, Mr. Baker examines the technologies we love–jet travel, computer networks, and biotech–and finds that they are likely to empower new forms of terrorism unless the United States changes its current course a few degrees and overcome resistance to change from business, foreign governments, and privacy advocates.
International Trade Mr. Baker’s practice includes issues relating to government regulation of international trade in high-technology products, and advice and practice under the antidumping and countervailing duty laws of United States, European Union, Canada, and Australia. He also counsels clients on issues involving foreign sovereign immunity, and compliance with the Foreign Corrupt Practices Act. Stemming from his role at DHS, Mr. Baker has a deep background in the international implications of US security policy – from the disputes over US collection of data from international businesses to the US statutory command that all containers being shipped to the US be scanned before leaving foreign ports.
Worldwide Arbitration Mr. Baker has handled the arbitration of claims exceeding a billion dollars, is a member of national and international rosters of arbitrators, and is the author of articles and a book on the United Nations Commission on International Trade Law arbitration rules.
Appellate Mr. Baker has had a number of significant successes in appellate litigation and appearances before the United States Supreme Court. He developed – and persuaded the Court to adopt – a new theory of constitutional federalism that remains the most vibrant 10th Amendment doctrine of the past 30 years. In addition to having filed many Supreme Court and appellate briefs, Mr. Baker was appointed by the Supreme Court to brief and argue Becker v. Montgomery and was recognized in the Court’s opinion for his “able” advocacy. He founded the State and Local Legal Center, which represents state http://www.steptoe.com/professionals-Stewart_Baker.html 2/5 5/20/2016 Steptoe & Johnson LLP: Stewart A. Baker - Partner 21 and local governments before the Court; and his writings on appellate and constitutional issues have been cited in various opinions of the Court. His brief opposing the federal government in New York v. United States, 488 US 1041 (1992), was described by Assistant Attorney General Walter Dellinger as “one of the most influential amicus briefs ever filed in the Supreme Court.”
Noteworthy
Named to The National Law Journal's "Regulatory & Compliance Trailblazers" list, 2015 Chambers Global 2013-2016, International Trade: CFIUS Experts (US) Chambers USA 2012-2015, International Trade: CFIUS Experts (Nationwide) Washingtonian Magazine’s “Best Lawyers” in Cybersecurity; National Security, 2011, 2013, 2015 The Legal 500 US, Media, Technology & Telecoms: Telecoms and Broadcast - Regulatory & Litigation; Litigation: International Trade, 2010-2015 Distinguished Visiting Fellow, Center for Strategic and International Studies, 2009 Assistant Secretary for Policy, Department of Homeland Security, 2005-2009 General Counsel, Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, 2004-2005 General Counsel, National Security Agency, 1992-1994 Deputy General Counsel, United States Department of Education, 1979-1981 The Washington Post list of seven Washington lawyers who distinguished themselves in 1998
Select News & Events
"War in the 21st Century: Cyberterrorism, Cybersecurity, and the Law of War," Penn State Law, April 15, 2016 Steptoe Receives 13 Practice, 31 Individual Mentions in Chambers Global 2016 Stewart Baker ‘Makes Waves’ at SXSW Apple/FBI Privacy Debate "Security vs. Security: In Defense Of Government Access to Data," WHD.global, March 16, 2016 “Cryptowars 2.0: Silicon Valley vs Washington,” SXSW, March 14, 2016 “The View from Washington with Jim Lewis and Stewart Baker,” RSA Conference, March 3, 2016 Media Quote Baker, Vatis on Apple’s Response to Judicial Order Emerging Cyber Attack Trends and Technical and Legal Remedies, February 24, 2016, A Steptoe and Kroll sponsored event Media Seek Out Steptoe's Cybersecurity Team on Apple/FBI Privacy Battle “Triple Entente Beer Summit,” Lawfare, February 18, 2016 Washington Post Quotes Stewart Baker on Cybersecurity Legislation http://www.steptoe.com/professionals-Stewart_Baker.html 3/5 5/20/2016 Steptoe & Johnson LLP: Stewart A. Baker - Partner 22 Wall Street Journal Quotes Stewart Baker on GOP Divide to Fight Terrorism
Selected Publications
Steptoe Cyberlaw Podcast CFIUS Past and Present: 2014 Report Coincides with High-Profile 2016 Chinese Acquisitions March 2, 2016 OFAC Issues Cyber-Related Sanctions Regulations January 7, 2016 CFTC Adopts Proposed Cybersecurity Regulations January 4, 2016 Targeting Beneficiaries of Cyber Attacks June 12, 2015, CIO Review Cybersecurity Export Controls - Proposed Changes In US Rules June 10, 2015, The Government Contractor BIS Proposes Cybersecurity Export Control Rule: Significant Changes Possible May 21, 2015 The European Commission’s Digital Single Market Strategy: What’s in It for Financial Services and Insurance? May 15, 2015
More Publications »
Professional Affiliations
Council on Foreign Relations (1994-present) President’s Export Council Subcommittee on Export Administration (2003-2005) Commerce Department’s Industry Trade Advisory Committee on Information and Communications Technologies, Services, and Electronic Commerce (2003-2005) Markle Foundation Task Force on National Security in the Information Age (2002- 2004) Federal Trade Commission’s Advisory Committee on Online Access and Security (2000) American Bar Association Standing Committee on Law and National Security (1998-2005) Member, Y2Ktoday Advisory Board (1999) Chair, State and Local Legal Center Advisory Board (1981-92; 1994-2005) International Telecommunication Union Experts Group on Authentication (1999) Member, President’s Export Council Subcommittee on Encryption (1998-present); Acting Chair (1998-1999) Member, Free Trade Area of the Americas Experts Committee on Electronic Commerce (1998-2005) http://www.steptoe.com/professionals-Stewart_Baker.html 4/5 5/20/2016 Steptoe & Johnson LLP: Stewart A. Baker - Partner 23 Member, US Delegation, UNCITRAL Group of Experts on Digital Signatures (1997-2005) Member, International Chamber of Commerce Group of Experts on Electronic Commerce (1996-2005) Member, US Delegation, OECD Group of Experts on Cryptography Policy (1995- 1997) Member, International Chamber of Commerce Working Party on Digital Authentication (1996-1998) Member, Defense Science Board’s Task Force on Information Warfare (1995-1996 and 1999-2001) Member, Board of Editors, The Internet Newsletter (1997-2005)
BEIJING BRUSSELS CENTURY CITY CHICAGO LONDON LOS ANGELES NEW YORK PALO ALTO PHOENIX WASHINGTON
http://www.steptoe.com/professionals-Stewart_Baker.html 5/5 24
NATIONAL SECURITY, INDIVIDUAL LIBERTY, AND YOU
Thursday, June 2, 2016 8:15 a.m. – 1:30 p.m. Marquette University Law School Ray and Kay Eckstein Hall A Conference Presented by Marquette University Law School, The Milwaukee Lawyer Chapter of the American Constitution Society, and The Milwaukee Lawyers Chapter of the Federalist Society
4 CLE credits
Various Relevant CLE Materials Steven Biskupic Biskupic & Jacobs Marquette University Law School
I. Historical Perspectives
A. Government Reactions/Overreactions to National Security Threats
1. The Founders
a. Federalist Papers #23 (risks to national safety are “infinite”) http://avalon.law.yale.edu/18th_century/fed23.asp
b. Alien & Sedition Act (1798) http://avalon.law.yale.edu/subject_menus/alsedact.asp
2. Lincoln & Habeas Corpus
Ex Parte Merryman, 17 F.Cas 144 (1861)
3. President• Wilson & Draft Protestors
Schneck v. United States, 249 U.S. 47 (1919)
4. World• War II and Japanese-American Citizens
Korematsu v. United States, 323 U.S. 214 (1944)
• 25
B. Pre-9/11 Criminal Prosecutions
1. World Trade Center Cases
a. United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) b. United States v. Rahman, 189 F.3d 88 (2d Cir. 1999)
2. Oklahoma City
United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998) • 3. Al-Qaeda
United States v. Bin Laden, 132 F. Supp. 2d 168 (S.D.N.Y. 2001) • II. 9/11 and the AUMF
A. 9/11 Commission Report Executive Summary http://www.911commission.gov/report/911Report_Exec.pdf)
B. Richard Posner, the 9/11 Report: A Dissent (N.Y. Times, August 29, 2004) http://www.nytimes.com/2004/08/29/books/the-9-11-report-a- dissent.html?_r=0
C. AUMF (Authorization for Use of Military Force, 2001) https://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW- 107publ40.pdf
III. Post- 9/11 Challenges
A. Torture
1. Layton, “What is Waterboarding?” http://science.howstuffworks.com/water-boarding.htm
2. Testimony of former FBI S/A Ali Soufan
http://www.fas.org/irp/congress/2009_hr/051309soufan.pdf
3. The Most Prolific Detainee, The Weekly Standard (Sept 7, 2009) http://www.weeklystandard.com/article/241742
2
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B. Drones
1. Department of Justice White Paper (on Drones) http://msnbcmedia.msn.com/i/msnbc/sections/news/02041 3_DOJ_White_Paper.pdf
2. Greg Miller, Under Obama, an Emerging Global Apparatus for Drone Killing, Wash. Post (Dec. 27, 2011) http://www.washingtonpost.com/national/national- security/under-obama-an-emerging-global-apparatus-for- drone-killing/2011/12/13/gIQANPdILP_story.html
C. Enemy Combatants
1. Boumediene v. Bush, 553 U.S. 723 (2008)
2. Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
3. Padilla v, Hanft, 423 F.3d 386 (4th Cir. 2005)
D. The Media
1. Hayden, “Ex-CIA Chief: What Edward Snowden Did” (7/19/13) http://www.cnn.com/2013/07/19/opinion/hayden-snowden- impact/
2. Rushkoff, “Edward Snowden is a hero” (6/10/13) http://www.cnn.com/2013/06/10/opinion/rushkoff- snowden-hero/index.html
IV. Local Uses of National Security Tools
A. Modern Law Enforcement and the Fourth Amendment – Overview
B. Section 213 of the PATRIOT ACT and “Sneak and Peak” Warrants
1. Fourth Amendment & Rule 41 Notice Requirement
Fed. R. Crim. P. 41(c): Law enforcement officer must leave copy of warrant at premises • 2. 18 USC § 3103a: Delayed notice usually for 30-90 days if:
a. “reasonable cause to believe” notice would harm investigation; b. no items are seized by law enforcement during search; 3 27
c. date of delayed notice set at time warrant is issued (though can be extended).
3. “The Rapid Rise of Delayed Notice Searches”
Witmer-Rich, The Rapid Rise of Delayed Notice Search, and the Fourth Amendment “Rule Requiring Notice,” 41 • Pepperdine L. Rev. 509 (2014) http://digitalcommons.pepperdine.edu/cgi/viewconten t.cgi?article=2339&context=plr
4. Wisconsin mirrors (& sometimes exceeds) national trend
a. Jaycox, Peekaboo, I See You: Government Authority Intended for Terrorism is Used for Other Purposes, Electronic Frontier Foundation (October 26, 2014). https://www.eff.org/deeplinks/2014/10/peekaboo-i- see-you-government-uses-authority-meant-terrorism- other-uses
b. E.D. Wisconsin numbers for delayed notice warrants:
Year Number of Delayed Notice Warrants Average Delay
2011 54 85 days
2012 102 93 days
2013 114 102 days
c. But see: Kerr, Why the EFF –- and then others – probably misunderstood the numbers on “sneak and peek warrants” https://www.washingtonpost.com/news/volokh- conspiracy/wp/2014/10/31/why-the-eff-and-then- others-probably-misunderstood-the-numbers-on- sneak-and-peek-warrants/ (Oct. 31, 2014)
C. Monitoring of Facebook and other Social Media
1. Stored Communications Act, 18 USC §§ 2701-2712
2. Cyber-Security Act of 2015
https://www.congress.gov/bill/114th-congress/senate- bill/754
4 28
3. Facebook requirements for law enforcement https://www.facebook.com/safety/groups/law/guidelines/
D. Public Video Surveillance (“Pole Cameras”)
United States v. Rocky Joe Houston, No. 14-5800 (6th Cir. Feb. 8, 2016) (no Fourth Amendment right to prevent law • enforcement video surveillance from public place)
E. Cellphones as Tracking Devices
1. “Stingrays”
2. United States v. Patrick, No. 15-2443 (7th Cir. pending) (argued May 24, 2016)
See also Amicus Curiae Brief of Electronic Frontier Foundation, American Civil Liberties Union Foundation, • and ACLU of Wisconsin, Inc. in Support of Defendant- Appellant
V. Meta-Data Collection, the PATRIOT Act, and the Drafting of the USA FREEDOM Act of 2015 A. Foreign Intelligence Surveillance Act
1. Title 50, USC § 1801 et seq.
2. Klayman v. Obama, 805 F.3d 1148 & 800 F.3d 559 (D.C. Cir. 2015)
3. ACLU v. Clapper, 2013 WL 6819780 (S.D.N.Y. Dec. 27, 2013)
B. USA FREEDOM Act of 2015 (limiting bilk collection of metadata) https://www.gpo.gov/fdsys/pkg/PLAW-114publ23/html/PLAW- 114publ23.htm
C. The USA PATRIOT Act https://www.gpo.gov/fdsys/pkg/BILLS-107hr3162enr/pdf/BILLS- 107hr3162enr.pdf
5
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VI. The Intersection and Conflict Between National Security and Technology • In the Matter of the Search of an Apple I-Phone Seized During the Execution of a Search Warrant on a Black Lexus IS 300, California License Plate #5KGD203 (C.D. Cal., CM16-10) (Apple v. the FBI)
1. Apple, Inc.’s Motion to Vacate Order Compelling Apple Inc. To Assist Agents In Search, And Opposition To Government’s Motion To Compel Assistance (brief attached to electronic distribution of conference materials)
2. Government’s Reply in Support of Motion To Compel And Opposition To Apple Inc.’s Motion To Vacate Order (brief attached to electronic distribution of conference materials)
6 30
1 THEODORE J. BOUTROUS JR., SBN 132099 [email protected] 2 NICOLA T. HANNA, SBN 130694 [email protected] 3 ERIC D. VANDEVELDE, SBN 240699 [email protected] 4 GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue 5 Los Angeles, CA 90071-3197 Telephone: 213.229.7000 6 Facsimile: 213.229.7520 7 THEODORE B. OLSON, SBN 38137 [email protected] 8 GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. 9 Washington, DC, 20036-5306 Telephone: 202.955.8500 10 Facsimile: 202.467.0539 11 MARC J. ZWILLINGER* [email protected] 12 JEFFFREY G. LANDIS* [email protected] 13 ZWILLGEN PLLC 1900 M Street N.W., Suite 250 14 Washington, D.C. 20036 Telephone: 202.706.5202 15 Facsimile: 202.706.5298 *Pro Hac Vice Admission Pending 16 Attorneys for Apple Inc. 17 UNITED STATES DISTRICT COURT 18 CENTRAL DISTRICT OF CALIFORNIA 19 EASTERN DIVISION 20 IN THE MATTER OF THE SEARCH ED No. CM 16-10 (SP) 21 OF AN APPLE IPHONE SEIZED DURING THE EXECUTION OF A APPLE INC’S MOTION TO VACATE 22 SEARCH WARRANT ON A BLACK ORDER COMPELLING APPLE INC. LEXUS IS300, CALIFORNIA TO ASSIST AGENTS IN SEARCH, 23 LICENSE PLATE 35KGD203 AND OPPOSITION TO GOVERNMENT’S MOTION TO 24 COMPEL ASSISTANCE 25 Hearing: Date: March 22, 2016 26 Time: 1:00 p.m. Place: Courtroom 3 or 4 27 Judge: Hon. Sheri Pym 28
Gibson, Dunn & Crutcher LLP 31
1 Apple Inc. (“Apple”), by and through its counsel of record, hereby files this 2 Motion to Vacate the Order Compelling Apple Inc. to Assist Agents in Search, and 3 Opposition to the Government’s Motion to Compel Assistance. 4 This Motion and Opposition is based upon the attached memorandum of points 5 and authorities, the attached declarations of Nicola T. Hanna, Lisa Olle, and Erik 6 Neuenschwander and exhibits, the files and records in this case, and such further 7 evidence and argument as the Court may permit. 8 9 Dated: February 25, 2016 Respectfully submitted,
10 GIBSON, DUNN & CRUTCHER LLP 11 By: /s/ Theodore J. Boutrous, Jr. 12 Theodore J. Boutrous, Jr.
13 Theodore J. Boutrous, Jr. 14 Nicola T. Hanna Eric D. Vandevelde 15 Gibson, Dunn & Crutcher LLP 333 South Grand Avenue 16 Los Angeles, CA 90071-3197 Telephone: 213.229.7000 17 Facsimile: 213.229.7520 18 Theodore B. Olson 19 Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. 20 Washington, DC, 20036-5306 Telephone: 202.955.8500 21 Facsimile: 202.467.0539 22 Marc J. Zwillinger * 23 Jeffrey G. Landis * ZwillGen PLLC 24 1900 M Street N.W., Suite 250 Washington, D.C. 20036 25 Telephone: 202.706.5202 Facsimile: 202.706.5298 26 *Pro Hac Vice Admission Pending 27 Attorneys for Apple Inc. 28
Gibson, Dunn & Crutcher LLP 32
1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION ...... 1 4 II. BACKGROUND ...... 5 5 A. Apple’s Industry-Leading Device Security...... 5 6 B. The Government Abandoned Efforts To Obtain Legal Authority For Mandated Back Doors...... 6 7 C. Apple’s Substantial Assistance In The Government’s Investigation...... 100 8 D. The Government’s Ex Parte Application Under The All Writs Act, 9 And This Court’s Order ...... 111 10 E. The Resources And Effort Required To Develop The Software Demanded By The Government ...... 13 11 III. ARGUMENT ...... 144 12 A. The All Writs Act Does Not Provide A Basis To Conscript Apple 13 To Create Software Enabling The Government To Hack Into iPhones...... 144 14 1. The All Writs Act Does Not Grant Authority To Compel 15 Assistance Where Congress Has Considered But Chosen Not To Confer Such Authority...... 15 16 2. New York Telephone Co. And Its Progeny Confirm That 17 The All Writs Act Does Not Authorize Courts To Compel The Unprecedented And Unreasonably Burdensome 18 Conscription Of Apple That The Government Seeks...... 20 19 a. Apple’s Connection To The Underlying Case Is “Far Removed” And Too Attenuated To Compel Its 20 Assistance ...... 200 21 b. The Order Requested By The Government Would Impose An Unprecedented And Oppressive Burden On 22 Apple And Citizens Who Use The iPhone...... 23 23 c. The Government Has Not Demonstrated Apple’s Assistance Was Necessary To Effectuating The 24 Warrant...... 29 25 3. Other Cases The Government Cites Do Not Support The Type Of Compelled Action Sought Here...... 300 26 B. The Order Would Violate The First Amendment And The Fifth 27 Amendment’s Due Process Clause...... 322 28 1. The First Amendment Prohibits The Government From Compelling Apple To Create Code ...... 322
Gibson, Dunn & Crutcher LLP i 33
1 TABLE OF CONTENTS (Continued) 2 2. The Fifth Amendment’s Due Process Clause Prohibits The Page 3 Government From Compelling Apple To Create The Request Code ...... 344 4 IV. CONCLUSION ...... 355 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Gibson, Dunn & Crutcher LLP ii 34 TABLE OF AUTHORITIES 1 Page(s) 2 Cases 3 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 4 307 F. Supp. 2d 1085 (N.D. Cal. 2004) ...... 32
5 Alzheimer’s Inst. of Am. Inc. v. Elan Corp., 6 2013 WL 8744216 (N.D. Cal. Jan. 31, 2013) ...... 18 7 In the Matter of an Application of U.S. of Am. for an Order Authorizing 8 Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526 (D. Md. 2011) ...... 15 9 Application of U.S. of Am. for an Order Authorizing an In-Progress Trace 10 of Wire Commc’ns over Tel. Facilities, 616 F.2d 1122 ...... 21, 22, 27, 29 11 In re Application of U.S. of Am. for an Order Directing a Provider of 12 Commc’n Servs. to Provide Tech. Assistance to Agents of the U.S. 13 Drug Enf’t Admin., 2015 WL 5233551 (D.P.R. Aug. 27, 2015) ...... 27 14 In re Application of U.S. of Am. for an Order Directing X to Provide 15 Access to Videotapes (“Videotapes”), 16 2003 WL 22053105 (D. Md. Aug. 22, 2003) ...... 21, 27
17 Ayres v. Ocwen Loan Serv., LLC, 18 2013 WL 4784190 (D. Md. Sept. 5, 2013) ...... 5 19 Baker v. Carr, 369 U.S. 186 (1962) ...... 19 20 21 Bernstein v. Dep’t of State, 922 F. Supp. 1426 (N.D. Cal. 1996) ...... 32 22 Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 23 511 U.S. 164 (1994) ...... 18 24 Clark v. Martinez, 25 543 U.S. 371 (2005) ...... 18 26 Clinton v. Jones, 27 520 U.S. 681 (1997) ...... 18 28
Gibson, Dunn & Crutcher LLP i 35 TABLE OF AUTHORITIES 1 (Continued) Page(s) 2 Cnty. of Sacramento v. Lewis, 3 523 U.S. 833 (1998) ...... 34 4 Costanich v. Dep’t of Soc. & Health Servs., 5 627 F.3d 1101 (9th Cir. 2010) ...... 34 6 Diamond v. Chakrabarty, 447 U.S. 303 (1980) ...... 19 7 8 Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211 (1979) ...... 33 9 Grannis v. Ordean, 10 234 U.S. 385 (1914) ...... 11 11 Junger v. Daley, 12 209 F.3d 481 (6th Cir. 2000) ...... 32
13 Members of City Council v. Taxpayers for Vincent, 14 466 U.S. 789 (1984) ...... 34 15 Mich. Bell Telephone Co. v. United States, 16 565 F.2d 385 (6th Cir. 1977) ...... 29 17 Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950) ...... 11 18 19 In re Order, 2015 WL 5920207 ...... 16, 19, 22 20 In re Order Requiring [XXX], Inc. to Assist in the Execution of a Search 21 Warrant Issued by This Court by Unlocking a Cellphone, 22 2014 WL 5510865 (S.D.N.Y. Oct. 31, 2014) (“Order Requiring [XXX]”) ...... 28 23 24 In re Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant Issued by the Court, 25 E.D.N.Y No. 15 MC 1902, Dkt. 19 ...... 22 26 In re Order Requiring Apple, Inc. to Assist in the Execution of a Search 27 Warrant Issued by this Court, E.D.N.Y No. 15-MC-1902, Dkt. 27 ...... 3 28
Gibson, Dunn & Crutcher LLP ii 36 TABLE OF AUTHORITIES 1 (Continued) Page(s) 2 Pa. Bureau of Corr. v. U.S. Marshals Serv., 3 474 U.S. 34 (1985) ...... 15 4 Pipe Trades Council, U.A. Loc. 159 v. Underground Contractors Ass’n, 5 835 F.2d 1275 (9th Cir. 1987) ...... 5 6 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ...... 18 7 8 Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283 (9th Cir. 1979) ...... 1, 14, 15, 31, 32 9 Quon v. Arch Wireless Operating Co., Inc., 10 529 F.3d 892 (9th Cir. 2008) ...... 17 11 Riley v. California, 12 134 S. Ct. 2473 (2014) ...... 25
13 Riley v. Nat’l Fed. of the Blind of N.C., Inc., 14 487 U.S. 781,796 (1988)...... 32 15 Saldana v. Occidental Petroleum Corp., 16 774 F.3d 544 (9th Cir. 2014) (per curiam) ...... 19 17 In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, Cal. License 18 Plate 35KGD203, 19 No. ED 15-0451M (Feb. 16, 2016), Dkt...... 12, 22, 31
20 State v. Underdahl, 21 767 N.W.2d 677 (Minn. 2009) ...... 24 22 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ...... 33 23 24 United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012) ...... 24 25 United States v. Cameron, 26 699 F.3d 621 (1st Cir. 2012) ...... 26 27 United States v. Catoggio, 28 698 F.3d 64 (2d Cir. 2012) (per curiam) ...... 30
Gibson, Dunn & Crutcher LLP iii 37 TABLE OF AUTHORITIES 1 (Continued) Page(s) 2 United States v. Cooper, 3 983 F.2d 928 (9th Cir. 1993) ...... 24 4 United States v. Elcom Ltd., 5 203 F. Supp. 2d 1111 (N.D. Cal. 2002) ...... 32 6 United States v. Fricosu, 841 F. Supp. 2d 1232 (D. Colo. 2012) ...... 30 7 8 United States v. Hall, 583 F. Supp. 717 (E.D. Va. 1984) ...... 21, 23, 27 9 United States v. Navarro, 10 No. 13-CR-5525 (W.D. Wash. Nov. 13, 2013), ECF No. 39 ...... 28 11 United States v. New York Telephone Co., 12 434 U.S. 159 (1977) ...... 20, 21, 22, 29, 30
13 Universal City Studios, Inc. v. Corley, 14 273 F.3d 429 (2d Cir. 2001) ...... 32 15 Vieth v. Jubelirer, 16 541 U.S. 267 (2004) (plurality opinion) ...... 19 17 Xi v. INS, 298 F.3d 832 (9th Cir. 2002) ...... 19 18 19 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ...... 18 20 Statutes 21 22 18 U.S.C. § 2518(4) ...... 17 23 18 U.S.C. § 3282 ...... 35
24 28 U.S.C. § 1651 ...... 11, 15, 19 25 47 U.S.C. § 1001 ...... 8, 17 26 47 U.S.C. § 1002 ...... 8, 16, 17 27 28
Gibson, Dunn & Crutcher LLP iv 38 TABLE OF AUTHORITIES 1 (Continued) Page(s) 2 Other Authorities 3 Apple Inc., A Message to Our Customers (Feb. 16, 2016) ...... 3, 22 4 Apple Inc. and Apple Distrib. Int’l, Written Evidence (IPB0093), (Dec. 5 21, 2015) ...... 7 6 Apple Inc., iCloud: Back up your iOS device to iCloud ...... 11 7 Apple Inc., iOS Security: iOS 9.0 or later (September 2015)...... 6 8 9 Apple Inc., Privacy, Government Information Requests ...... 33 10 Comey, Follow This Lead ...... 4, 12, 33 11 Comey, Going Dark ...... 4, 12
12 Cyrus R. Vance Jr., No Smartphone Lies Beyond the Reach of a Judicial 13 Search Warrant, N.Y. Times (Feb. 18, 2016) ...... 10, 24 14 Damian Paletta, How the U.S. Fights Encryption—and Also Helps 15 Develop It, Wall St. J. (Feb. 22, 2016) ...... 6 16 Ellen Nakashima, Hacks of OPM Databases Compromised 22.1 Million People, Federal Authorities Say, Wash. Post (July 9, 2015) ...... 1 17 18 Ellen Nakashima and Mark Berman, FBI Asked San Bernardino to Reset the Password for Shooter’s Phone Backup, Wash. Post (Feb. 20, 2016) ...... 34 19 Ellen Nakashima, Proposal Seeks to Fine Tech Companies for 20 Noncompliance with Wiretap Orders, Wash. Post (Apr. 28, 2013) ...... 9 21 FBI, Operational Technology, Going Dark Issue (last visited Feb. 23, 22 2016) ...... 4, 7 23 Gen. Michael Hayden Gives an Update on the Cyberwar, Wall St. J. (Feb. 24 17, 2016) ...... 5
25 H.R. 2233, 114th Cong. (2015) (same, adding additional amendments to 26 the Foreign Intelligence Surveillance Act of 1978) ...... 9 27 H.R. Rep. No. 103-827(I), (1994) ...... 8, 17 28
Gibson, Dunn & Crutcher LLP v 39 TABLE OF AUTHORITIES 1 (Continued) Page(s) 2 James Comey, Director Discusses Encryption, Patriot Act Provisions 3 (May 20, 2015) ...... 10 4 James Comey, Encryption, Public Safety, and “Going Dark,” ...... 4
5 James Comey, “Going Dark: Encryption, Technology, and the Balances 6 Between Public Safety and Encryption,” Joint Statement with Deputy Atty Gen. Sally Quillian Yates Before the Sen. Judiciary Comm. (July 7 8, 2015) ...... 7 8 James Comey, Statement Before the Senate Comm. on Homeland Sec. & 9 Governmental Affairs (Oct. 8, 2015) ...... 9
10 James Comey, We Could Not Look the Survivors in the Eye if We Did Not 11 Follow This Lead ...... 4 12 Kara Swisher, White House. Red Chair. Obama Meets Swisher (Feb. 15, 13 2015) ...... 10 14 Margaret Coker, et al., The Attacks in Paris: Islamic State Teaches Tech Savvy, Wall St. J. (Nov. 17, 2015) ...... 4 15 16 Mike McConnell et al., Why The Fear Over Ubiquitous Data Encryption Is Overblown, Wash. Post (July 28, 2015) ...... 8 17 New America’s Open Technology Institute, Joint Letter to President 18 Barack Obama (May 19, 2015) ...... 9 19 NPR, Weekend Edition, It’s Not Just the iPhone Law Enforcement Wants 20 to Unlock (Feb. 21, 2016) ...... 10 21 Remarks by President Obama and Prime Minister Cameron of the United 22 Kingdom in Joint Press Conference (Jan. 16, 2015) ...... 10
23 Secure Data Act of 2015, H.R. 726, 114th Cong. (2015) ...... 9 24 Secure Data Act of 2015, S.135, 114th Cong. (2015) ...... 9 25 Senior House Judiciary Committee Democrats Express Concern Over 26 Government Attempts to Undermine Encryption, House Comm. on the 27 Judiciary, Democrats (Feb. 18, 2016)...... 9 28
Gibson, Dunn & Crutcher LLP vi 40 TABLE OF AUTHORITIES 1 (Continued) Page(s) 2 Seung Lee, The Murder Victim Whose Phone Couldn’t Be Cracked and 3 Other Apple Encryption Stories, Newsweek (Feb. 19, 2016) ...... 3 4 Susan Landau, The National-Security Needs for Ubiquitous Encryption 5 (Feb. 1, 2016) ...... 7 6 Rules 7 Fed. R. Evid. 404 ...... 35
8 Fed. R. Evid. 702 ...... 24 9 Constitutional Provisions 10 U.S. Const. amend. IV ...... 35 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This is not a case about one isolated iPhone. Rather, this case is about the 4 Department of Justice and the FBI seeking through the courts a dangerous power that 5 Congress and the American people have withheld: the ability to force companies like 6 Apple to undermine the basic security and privacy interests of hundreds of millions of 7 individuals around the globe. The government demands that Apple create a back door 8 to defeat the encryption on the iPhone, making its users’ most confidential and 9 personal information vulnerable to hackers, identity thieves, hostile foreign agents, and 10 unwarranted government surveillance. The All Writs Act, first enacted in 1789 and on 11 which the government bases its entire case, “does not give the district court a roving 12 commission” to conscript and commandeer Apple in this manner. Plum Creek Lumber 13 Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). In fact, no court has ever 14 authorized what the government now seeks, no law supports such unlimited and 15 sweeping use of the judicial process, and the Constitution forbids it. 16 Since the dawn of the computer age, there have been malicious people dedicated 17 to breaching security and stealing stored personal information. Indeed, the government 18 itself falls victim to hackers, cyber-criminals, and foreign agents on a regular basis, 19 most famously when foreign hackers breached Office of Personnel Management 20 databases and gained access to personnel records, affecting over 22 million current and 21 former federal workers and family members.1 In the face of this daily siege, Apple is 22 dedicated to enhancing the security of its devices, so that when customers use an 23 iPhone, they can feel confident that their most private personal information—financial 24 records and credit card information, health information, location data, calendars, 25 personal and political beliefs, family photographs, information about their children— 26 1 See, e.g., Hanna Decl. Ex. A [Ellen Nakashima, Hacks of OPM Databases 27 Compromised 22.1 Million People, Federal Authorities Say, Wash. Post (July 9, 2015)] (explaining that hackers used stolen logins and passwords to gain access to 28 federal employee records databases for six months before detection).
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1 will be safe and secure. To this end, Apple uses encryption to protect its customers 2 from cyber-attack and works hard to improve security with every software release 3 because the threats are becoming more frequent and sophisticated. Beginning with 4 iOS 8, Apple added additional security features that incorporate the passcode into the 5 encryption system. It is these protections that the government now seeks to roll back 6 by judicial decree. 7 There are two important and legitimate interests in this case: the needs of law 8 enforcement and the privacy and personal safety interests of the public. In furtherance 9 of its law enforcement interests, the government had the opportunity to seek 10 amendments to existing law, to ask Congress to adopt the position it urges here. But 11 rather than pursue new legislation, the government backed away from Congress and 12 turned to the courts, a forum ill-suited to address the myriad competing interests, 13 potential ramifications, and unintended consequences presented by the government’s 14 unprecedented demand. And more importantly, by invoking “terrorism” and moving 15 ex parte behind closed courtroom doors, the government sought to cut off debate and 16 circumvent thoughtful analysis. 17 The order demanded by the government compels Apple to create a new 18 operating system—effectively a “back door” to the iPhone—that Apple believes is too 19 dangerous to build. Specifically, the government would force Apple to create new 20 software with functions to remove security features and add a new capability to the 21 operating system to attack iPhone encryption, allowing a passcode to be input 22 electronically. This would make it easier to unlock the iPhone by “brute force,” trying 23 thousands or millions of passcode combinations with the speed of a modern computer. 24 In short, the government wants to compel Apple to create a crippled and insecure 25 product. Once the process is created, it provides an avenue for criminals and foreign 26 agents to access millions of iPhones. And once developed for our government, it is 27 only a matter of time before foreign governments demand the same tool. 28
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1 The government says: “Just this once” and “Just this phone.” But the 2 government knows those statements are not true; indeed the government has filed 3 multiple other applications for similar orders, some of which are pending in other 4 courts.2 And as news of this Court’s order broke last week, state and local officials 5 publicly declared their intent to use the proposed operating system to open hundreds of 6 other seized devices—in cases having nothing to do with terrorism.3 If this order is 7 permitted to stand, it will only be a matter of days before some other prosecutor, in 8 some other important case, before some other judge, seeks a similar order using this 9 case as precedent. Once the floodgates open, they cannot be closed, and the device 10 security that Apple has worked so tirelessly to achieve will be unwound without so 11 much as a congressional vote. As Tim Cook, Apple’s CEO, recently noted: “Once 12 created, the technique could be used over and over again, on any number of devices. 13 In the physical world, it would be the equivalent of a master key, capable of opening 14 hundreds of millions of locks—from restaurants and banks to stores and homes. No 15 reasonable person would find that acceptable.” Declaration of Nicola T. Hanna 16 (“Hanna Decl.”), Ex. D [Apple Inc., A Message to Our Customers (Feb. 16, 2016)]. 17 Despite the context of this particular action, no legal principle would limit the 18 use of this technology to domestic terrorism cases—but even if such limitations could 19 be imposed, it would only drive our adversaries further underground, using encryption 20 technology made by foreign companies that cannot be conscripted into U.S. 21
22 2 Hanna Decl. Ex. B [Letter to Court, In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, E.D.N.Y No. 15-MC-1902, 23 Dkt. 27]. 3 24 E.g., Hanna Decl. Ex. C [Seung Lee, The Murder Victim Whose Phone Couldn’t Be Cracked and Other Apple Encryption Stories, Newsweek (Feb. 19, 2016)] (Cyrus 25 Vance, Manhattan District Attorney stating that he has “155 to 160” devices that he would like to access, while officials in Sacramento have “well over 100” devices 26 for which they would like Apple to produce unique software so that they can access the devices’ contents); Hanna Decl. ¶ 5 at 18:28 [Charlie Rose, Television 27 Interview of Cyrus Vance (Feb. 18, 2016)] (Vance stating “absolutely” that he “want[s] access to all those phones that [he thinks] are crucial in a criminal 28 proceeding”).
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1 government service4—leaving law-abiding individuals shouldering all of the burdens 2 on liberty, without any offsetting benefit to public safety. Indeed, the FBI’s repeated 3 warnings that criminals and terrorists are able to “go dark” behind end-to-end 4 encryption methods proves this very point. See Hanna Decl. Ex. F [FBI, Operational 5 Technology, Going Dark Issue (last visited Feb. 23, 2016) (“FBI, Going Dark”)]. 6 Finally, given the government’s boundless interpretation of the All Writs Act, it 7 is hard to conceive of any limits on the orders the government could obtain in the 8 future. For example, if Apple can be forced to write code in this case to bypass 9 security features and create new accessibility, what is to stop the government from 10 demanding that Apple write code to turn on the microphone in aid of government 11 surveillance, activate the video camera, surreptitiously record conversations, or turn on 12 location services to track the phone’s user? Nothing. 13 As FBI Director James Comey expressly recognized: 14 Democracies resolve such tensions through robust debate. . . . It may be that, as a people, we decide the benefits [of strong encryption] outweigh 15 the costs and that there is no sensible, technically feasible way to optimize privacy and safety in this particular context, or that public safety folks 16 will be able to do their job well enough in the world of universal strong encryption. Those are decisions Americans should make, but I think part 17 of my job is [to] make sure the debate is informed by a reasonable understanding of the costs. 18 Hanna Decl. Ex. G [James Comey, Encryption, Public Safety, and “Going Dark,” 19 Lawfare (July 6, 2015, 10:38 AM) (“Comey, Going Dark”)]; see also Hanna Decl. Ex. 20 H [James Comey, We Could Not Look the Survivors in the Eye if We Did Not Follow 21 This Lead, Lawfare (Feb. 21, 2016, 9:03 PM) (“Comey, Follow This Lead”)] 22 (reiterating that the tension between national security and individual safety and privacy 23 “should not be resolved by the FBI, which investigates for a living[, but rather] . . . by 24 the American people . . . .”). The government, by seeking an order mandating that 25
4 26 See Hanna Decl. Ex. E [Margaret Coker, et al., The Attacks in Paris: Islamic State Teaches Tech Savvy, Wall St. J. (Nov. 17, 2015) (“Coker, Tech Savvy”)] 27 (describing the technological sophistication of terrorists groups, including, for example, ISIS’s ability and willingness to shift to more secure communication 28 methods).
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1 Apple create software to destabilize the security of the iPhone and the law-abiding 2 citizens who use it to store data touching on every facet of their private lives, is not 3 acting to inform or contribute to the debate; it is seeking to avoid it. 4 Apple strongly supports, and will continue to support, the efforts of law 5 enforcement in pursuing justice against terrorists and other criminals—just as it has in 6 this case and many others. But the unprecedented order requested by the government 7 finds no support in the law and would violate the Constitution. Such an order would 8 inflict significant harm—to civil liberties, society, and national security—and would 9 preempt decisions that should be left to the will of the people through laws passed by 10 Congress and signed by the President. Accordingly, the Court should vacate the order 11 and deny the government’s motion to compel.5 12 II. BACKGROUND 13 A. Apple’s Industry-Leading Device Security. 14 Apple is committed to data security. Encryption provides Apple with the 15 strongest means available to ensure the safety and privacy of its customers against 16 threats known and unknown.6 For several years, iPhones have featured hardware- and 17 5 The government filed its motion to compel notwithstanding the Court allowing an 18 eight-day period within which Apple could challenge the order compelling assistance, Apple’s express indication during the parties’ February 18 status 19 conference that it intended to seek relief from the order, the Court’s entry of a briefing schedule to permit the parties to address the validity of the order, and the 20 Court’s own skepticism about the utility of such a motion. That skepticism proved warranted. Only three pages into the government’s 25-page motion, it concedes the 21 motion is “not legally necessary.” Dkt. 1 at 3 n.3. Nor could the government claim otherwise, as the motion—substantial portions of which appear to have been cut 22 and pasted from the government’s ex parte application—seeks no relief beyond that contemplated by the order compelling assistance. Because the government’s 23 motion serves no legal purpose, and the issues it raises will be fully briefed and addressed in Apple’s motion to vacate and the government’s opposition thereto, it 24 should be denied. See, e.g., Pipe Trades Council, U.A. Loc. 159 v. Underground Contractors Ass’n, 835 F.2d 1275, 1279 (9th Cir. 1987) (concluding a district court 25 properly denied a motion to compel as premature); cf. Ayres v. Ocwen Loan Serv., LLC, 2013 WL 4784190, at *3 (D. Md. Sept. 5, 2013) (striking sua sponte a motion 26 that was “not technically ripe” and “meandering, redundant, transparent, and largely oblivious to the posture of the case”). 27 6 Former NSA and CIA Director Michael Hayden has recognized that, on balance, America is more secure because of “end-to-end unbreakable encryption.” Hanna 28 Decl. Ex. I [Gen. Michael Hayden Gives an Update on the Cyberwar, Wall St. J. (Cont'd on next page)
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1 software-based encryption of their password-protected contents. Declaration of Erik 2 Neuenschwander (“Neuenschwander Decl.”) ¶ 8. These protections safeguard the 3 encryption keys on the device with a passcode designated by the user during setup. Id. 4 ¶ 9. This passcode immediately becomes entangled with the iPhone’s Unique ID 5 (“UID”), which is permanently assigned to that one device during the manufacturing 6 process. Id. ¶ 13. The iPhone’s UID is neither accessible to other parts of the 7 operating system nor known to Apple. See generally Hanna Decl. Ex. K [Apple Inc., 8 iOS Security: iOS 9.0 or later (September 2015)]. These protections are designed to 9 prevent anyone without the passcode from accessing encrypted data on iPhones. 10 Neuenschwander Decl. ¶ 8 . 11 Cyber-attackers intent on gaining unauthorized access to a device could break a 12 user-created passcode, if given enough chances to guess and the ability to test 13 passwords rapidly by automated means. To prevent such “brute-force” attempts to 14 determine the passcode, iPhones running iOS 8 and higher include a variety of 15 safeguards. Id. ¶ 10. For one, Apple uses a “large iteration count” to slow attempts to 16 access an iPhone, ensuring that it would take years to try all combinations of a six- 17 character alphanumeric passcode. Id. ¶ 11. In addition, Apple imposes escalating time 18 delays after the entry of each invalid passcode. Id. ¶ 12. Finally, Apple also includes a 19 setting that—if activated—automatically deletes encrypted data after ten consecutive 20 incorrect attempts to enter the passcode. Id. This combination of security features 21 protects users from attackers or if, for example, the user loses the device. 22 B. The Government Abandoned Efforts To Obtain Legal Authority For Mandated Back Doors. 23 Some in the law enforcement community have disparaged the security 24 improvements by Apple and others, describing them as creating a “going dark” 25
26 (Cont'd from previous page) 27 (Feb. 17, 2016)]; cf. Hanna Decl. Ex. J [Damian Paletta, How the U.S. Fights Encryption—and Also Helps Develop It, Wall St. J. (Feb. 22, 2016)] (describing 28 funding by U.S. government of stronger encryption technologies).
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1 problem in which law enforcement may possess the “legal authority to intercept and 2 access communications and information pursuant to court orders” but lack the 3 “technical ability to carry out those orders because of a fundamental shift in 4 communications services and technologies.”7 As a result, some officials have 5 advanced the view that companies should be required to maintain access to user 6 communications and data and provide that information to law enforcement upon 7 satisfaction of applicable legal requirements.8 This would give the government, in 8 effect, a back door to otherwise encrypted communications—which would be precisely 9 the result of the government’s position in this case.9 10 Apple and other technology companies, supported by leading security experts, 11 have disagreed with law enforcement’s position, observing that any back door enabling 12 government officials to obtain encrypted data would also create a vulnerability that 13 could be exploited by criminals and foreign agents, weakening critical security 14 protections and creating new and unforeseen access to private information. For these 15 reasons, Apple and others have strongly opposed efforts to require companies to enable 16 the government to obtain encrypted information, arguing that this would compromise 17 the security offered to its hundreds of millions of law-abiding customers in order to 18 weaken security for the few who may pose a threat.10 19 As leading former national security officials have made clear, Apple’s 20 “resistance to building in a back door” in whatever form it may take is well-justified, 21
22 7 Hanna Decl. Ex. F [FBI, Going Dark]. 8 23 See, e.g., Hanna Decl. Ex. L [James Comey, Going Dark: Encryption, Technology, and the Balances Between Public Safety and Encryption, Joint Statement with 24 Deputy Atty. Gen. Sally Quillian Yates Before the Sen. Judiciary Comm. (July 8, 2015)]. The repeated concern about the broader “going dark” problem, and the 25 focus on universal back doors, stands in stark contrast to the comments by government officials that this case is just about one iPhone. 26 9 See Hanna Decl. Ex. M [Susan Landau, The National-Security Needs for Ubiquitous Encryption (Feb. 1, 2016)]. 27 10 See Hanna Decl. Ex. N, ¶ 20 [Apple Inc. and Apple Distrib. Int’l, Written Evidence 28 (IPB0093), (Dec. 21, 2015)].
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1 because “the greater public good is a secure communications infrastructure protected 2 by ubiquitous encryption at the device, server and enterprise level without building in 3 means for government monitoring.”11 4 In recent years, however, the government, led by the Department of Justice, has 5 considered legislative proposals that would have mandated such a back door. Those 6 proposals sought to significantly expand the reach of the Communications Assistance 7 for Law Enforcement Act (“CALEA”), 47 U.S.C. § 1001 et seq., in which Congress 8 defined the circumstances under which private companies must assist law enforcement 9 in executing authorized electronic surveillance and the nature of—and limits on—the 10 assistance such companies must provide.12 In addressing the twin needs of law 11 enforcement and privacy, Congress, through CALEA, specified when a company has 12 an obligation to assist the government with decryption of communications, and made 13 clear that a company has no obligation to do so where, as here, the company does not 14 retain a copy of the decryption key. 47 U.S.C. § 1002(b)(3). Congress, keenly aware 15 of and focusing on the specific area of dispute here, thus opted not to provide authority 16 to compel companies like Apple to assist law enforcement with respect to data stored 17 on a smartphone they designed and manufactured.13 18
11 19 Hanna Decl. Ex. O [Mike McConnell et al., Why The Fear Over Ubiquitous Data Encryption Is Overblown, Wash. Post (July 28, 2015)]. 20 12 Following a vigorous lobbying effort led by the FBI for enhanced surveillance and informational-access powers in the digital age, Congress “balance[d] three key 21 policies: (1) to preserve a narrowly focused capability for law enforcement agencies to carry out properly authorized intercepts; (2) to protect privacy in the face of 22 increasingly powerful and personally revealing technologies; and (3) to avoid impeding the development of new communications services and technologies.” 23 H.R. Rep. No. 103-827(I), at 13 (1994), as reprinted in 1994 U.S.C.C.A.N. 3489, 3493; see also id. at 17, 1994 U.S.C.C.A.N. at 3497 (“[A]s the potential 24 intrusiveness of technology increases, it is necessary to ensure that government surveillance authority is clearly defined and appropriately limited.”). 25 13 The government has acknowledged this. Dkt. 1 at 23. CALEA requires only 26 “telecommunications carriers” to ensure that their “equipment, facilities, or services” enable the government to intercept communications pursuant to a court 27 order or other lawful authorization. 47 U.S.C. § 1002. CALEA defines “telecommunications carrier” to exclude persons or entities providing “information 28 services,” such as Apple. Id. § 1001(8).
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1 The government’s proposed changes to CALEA would have dramatically 2 expanded the law’s scope by mandating that companies install back doors into their 3 products to ensure that authorities can access encrypted data when authorized to do 4 so.14 In the face of this proposal—commonly referred to as “CALEA II”—leading 5 technology companies, including Apple, as well as public interest organizations like 6 the ACLU and Human Rights Watch, urged President Obama to “reject any proposal 7 that U.S. companies deliberately weaken the security of their products . . . [and] 8 instead focus on developing policies that will promote rather than undermine the wide 9 adoption of strong encryption technology.”15 10 The Executive Branch ultimately decided not to pursue CALEA II, and 11 Congress has left CALEA untouched, meaning that Congress never granted the 12 authority the government now asserts. Moreover, members of Congress have recently 13 introduced three pieces of legislation that would affirmatively prohibit the government 14 from forcing private companies like Apple to compromise data security.16 On October 15 8, 2015, FBI Director Comey confirmed that the Obama Administration would not 16 seek passage of CALEA II at that time.17 Instead, Director Comey expressed his view 17 14 See Hanna Decl. Ex. P [Ellen Nakashima, Proposal Seeks to Fine Tech Companies 18 for Noncompliance with Wiretap Orders, Wash. Post (Apr. 28, 2013)]. 15 Hanna Decl. Ex. Q [New America’s Open Technology Institute, Joint Letter to 19 President Barack Obama (May 19, 2015)]. 16 20 See Secure Data Act of 2015, S.135, 114th Cong. (2015) (proposal to prohibit a federal agency from requiring hardware or software manufacturers to design or alter 21 the security functions in their products to allow surveillance, and exempting products used pursuant to CALEA); Secure Data Act of 2015, H.R. 726, 114th 22 Cong. (2015) (same); End Warrantless Surveillance of Americans Act, H.R. 2233, 114th Cong. (2015) (same, adding additional amendments to the Foreign 23 Intelligence Surveillance Act of 1978). In fact, just last week, four senior members of the House Judiciary Committee issued a statement expressing concern that the 24 order in this case constitutes an “end-run around the legislative process.” Hanna Decl. Ex. R [Senior House Judiciary Committee Democrats Express Concern Over 25 Government Attempts to Undermine Encryption, House Comm. on the Judiciary, Democrats (Feb. 18, 2016)]. Recognizing that Congress has not yet determined to 26 act on this issue, they stated that “there is little reason for the government to make this demand on Apple—except to enact a policy proposal that has gained no 27 traction in Congress and was rejected by the White House.” Id. 17 Hanna Decl. Ex. S [James Comey, Statement Before the Senate Comm. on 28 Homeland Sec. & Governmental Affairs (Oct. 8, 2015)] (noting that while the (Cont'd on next page)
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1 that the “going dark” debate raises issues that “to a democracy should be very, very 2 concerning” and therefore the issue is “worthy of a larger public conversation.”18 3 President Obama has also remarked that it is “useful to have civil libertarians and 4 others tapping us on the shoulder in the midst of this process and reminding us that 5 there are values at stake as well,” noting further that he “welcome[s] that kind of 6 debate.”19 As the President has recognized, these issues are part of “a public 7 conversation that we should end up having.”20 8 C. Apple’s Substantial Assistance In The Government’s Investigation 9 Apple was shocked and saddened by the mindless savagery of the December 2, 10 2015 terrorist attack in San Bernardino. In the days following the attack, the FBI 11 approached Apple for help in its investigation. Apple responded immediately, and 12 devoted substantial resources on a 24/7 basis to support the government’s investigation 13 of this heinous crime. Declaration of Lisa Olle (“Olle Decl.”) ¶¶ 5-9. 14 Apple promptly provided all data that it possessed relating to the attackers’ 15 accounts and that the FBI formally requested via multiple forms of legal process, in 16 keeping with Apple’s commitment to comply with all legally valid subpoenas and 17
18 (Cont'd from previous page) “United States government is actively engaged with private companies to ensure 19 they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services . . . the administration 20 is not seeking legislation at this time.”). 18 21 See Hanna Decl. Ex. T [James Comey, Director Discusses Encryption, Patriot Act Provisions, (May 20, 2015)]. Even Manhattan District Attorney Cyrus Vance, Jr., 22 who is eager to see the government prevail here, has acknowledged that these issues should be resolved by Congress. Hanna Decl. Ex. Z [Cyrus R. Vance Jr., No 23 Smartphone Lies Beyond the Reach of a Judicial Search Warrant, N.Y. Times (Feb. 18, 2016)]; Hanna Decl. Ex. U [NPR, Weekend Edition, It’s Not Just the iPhone 24 Law Enforcement Wants to Unlock (Feb. 21, 2016)] (“. . . I think that the United States Congress is going to have to step in here . . . We need to look at this with 25 independent eyes. And I believe Congress ultimately is going to have to make the judgment call of where we draw that line [between privacy and public safety]”.). 26 19 Hanna Decl. Ex. V [Remarks by President Obama and Prime Minister Cameron of the United Kingdom in Joint Press Conference (Jan. 16, 2015)]. 27 20 Hanna Decl. Ex. W [Kara Swisher, White House. Red Chair. Obama Meets 28 Swisher, Re/Code.com (Feb. 15, 2015)].
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1 search warrants that the company receives. Id. Additionally, Apple has furnished 2 valuable informal assistance to the government’s investigation—participating in 3 teleconferences, providing technical assistance, answering questions from the FBI, and 4 suggesting potential alternatives for the government to attempt to obtain data from the 5 iPhone at issue. Id. ¶ 6. 6 Unfortunately, the FBI, without consulting Apple or reviewing its public 7 guidance regarding iOS, changed the iCloud password associated with one of the 8 attacker’s accounts, foreclosing the possibility of the phone initiating an automatic 9 iCloud back-up of its data to a known Wi-Fi network, see Hanna Decl. Ex. X [Apple 10 Inc., iCloud: Back up your iOS device to iCloud], which could have obviated the need 11 to unlock the phone and thus for the extraordinary order the government now seeks.21 12 Had the FBI consulted Apple first, this litigation may not have been necessary. 13 D. The Government’s Ex Parte Application Under The All Writs Act, And This Court’s Order 14 On February 16, 2016, the government filed an ex parte application and 15 proposed order asking the Court to compel Apple to assist in the government’s 16 investigation under the authority of the All Writs Act, codified at 28 U.S.C. § 1651.22 17 18 21 In its motion to compel, filed February 19 with this Court, the government sought 19 to shift the blame to the “owner” (San Bernardino County) in describing who changed the password and why it allegedly has no other viable alternatives besides 20 the creation of a new operating system. Dkt. 1 at 18 n.7. The FBI later issued a press release acknowledging that it “worked with” the County to reset the 21 password. See Hanna Decl. Ex. Y [Statement to Address Misleading Reports that the County of San Bernardino Reset Terror Suspect’s iPhone Without Consent of 22 the FBI, issued by the FBI to Ars Technica (Feb. 21, 2016)]. 22 The government obtained the Order without notice to Apple and without allowing 23 Apple an opportunity to be heard. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (recognizing that one of the “‘fundamental requisite[s] of 24 due process of law is the opportunity to be heard’”) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). But this was not a case where the government needed 25 to proceed in secret to safeguard its investigation; indeed, Apple understands that the government alerted reporters before filing its ex parte application, and then, 26 immediately after it was signed and confirmed to be on the docket, distributed the application and Order to the public at about the same time it notified Apple. 27 Moreover, this is the only case in counsel’s memory in which an FBI Director has blogged in real-time about pending litigation, suggesting that the government does 28 not believe the data on the phone will yield critical evidence about other suspects. (Cont'd on next page)
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1 With no opposition or other perspectives to consider, the Court granted the 2 government’s request and signed the government’s proposed order, thereby compelling 3 Apple to create new software that would allow the government to hack into an iPhone 4 5c used by one of the attackers. Order Compelling Apple Inc. to Assist Agents in 5 Search, In the Matter of the Search of an Apple iPhone Seized During the Execution of 6 a Search Warrant on a Black Lexus IS300, Cal. License Plate 35KGD203, No. ED 15- 7 0451M (Feb. 16, 2016), Dkt. at 19 (the “Order”). 8 The Order directs Apple to provide “reasonable technical assistance to assist law 9 enforcement agents in obtaining access to the data” on the device. Id. ¶ 1. The Order 10 further defines this “reasonable technical assistance” to include creating custom 11 software that can be loaded on the iPhone to accomplish three goals: (1) bypass or 12 disable the iPhone’s “auto-erase” function, designed to protect against efforts to obtain 13 unauthorized access to the device’s encrypted contents by deleting encrypted data after 14 ten unsuccessful attempts to enter the iPhone’s passcode, (2) enable the FBI to 15 electronically submit passcodes to the device for testing, bypassing the requirement 16 that passcodes be manually entered, and (3) remove any time delays between entering 17 incorrect passcodes. Id. ¶ 2. Because the government proceeded ex parte, Apple had 18 no opportunity to weigh in on whether such assistance was “reasonable,” and thus the 19 government’s request was assumed to be. 20 The software envisioned by the government simply does not exist today. Thus, 21 at bottom, the Order would compel Apple to create a new version of the iPhone 22 operating system designed to defeat the critical security features noted previously for 23 the specific purpose of accessing the device’s contents in unencrypted form—in other 24 words, to write new software to create a back door to the device’s encrypted data. 25
26 (Cont'd from previous page) 27 See Hanna Decl. Ex. G [Comey, Going Dark]; Hanna Decl. Ex. H [Comey, Follow 28 This Lead].
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1 E. The Resources And Effort Required To Develop The Software Demanded By The Government 2 The compromised operating system that the government demands would require 3 significant resources and effort to develop. Although it is difficult to estimate, because 4 it has never been done before, the design, creation, validation, and deployment of the 5 software likely would necessitate six to ten Apple engineers and employees dedicating 6 a very substantial portion of their time for a minimum of two weeks, and likely as 7 many as four weeks. Neuenschwander Decl. ¶ 22. Members of the team would 8 include engineers from Apple’s core operating system group, a quality assurance 9 engineer, a project manager, and either a document writer or a tool writer. Id. 10 No operating system currently exists that can accomplish what the government 11 wants, and any effort to create one will require that Apple write new code, not just 12 disable existing code functionality. Id. ¶ 24–25. Rather, Apple will need to design and 13 implement untested functionality in order to allow the capability to enter passcodes 14 into the device electronically in the manner that the government describes. Id. ¶ 24. In 15 addition, Apple would need to either develop and prepare detailed documentation for 16 the above protocol to enable the FBI to build a brute-force tool that is able to interface 17 with the device to input passcode attempts, or design, develop and prepare 18 documentation for such a tool itself. Id. ¶ 25. Further, if the tool is utilized remotely 19 (rather than at a secure Apple facility), Apple will also have to develop procedures to 20 encrypt, validate, and input into the device communications from the FBI. Id. This 21 entire development process would need to be logged and recorded in case Apple’s 22 methodology is ever questioned, for example in court by a defense lawyer for anyone 23 charged in relation to the crime. Id. ¶ 28. 24 Once created, the operating system would need to go through Apple’s quality 25 assurance and security testing process. Id. ¶ 29. Apple’s software ecosystem is 26 incredibly complicated, and changing one feature of an operating system often has 27 ancillary or unanticipated consequences. Id. ¶ 30. Thus, quality assurance and 28 security testing would require that the new operating system be tested on multiple
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1 devices and validated before being deployed. Id. Apple would have to undertake 2 additional testing efforts to confirm and validate that running this newly developed 3 operating system to bypass the device’s security features will not inadvertently destroy 4 or alter any user data. Id. ¶ 31. To the extent problems are identified (which is almost 5 always the case), solutions would need to be developed and re-coded, and testing 6 would begin anew. Id. ¶ 32. As with the development process, the entire quality 7 assurance and security testing process would need to be logged, recorded, and 8 preserved. Id. ¶ 33. Once the new custom operating system is created and validated, it 9 would need to be deployed on to the subject device, which would need to be done at an 10 Apple facility. Id. ¶¶ 34-35. And if the new operating system has to be destroyed and 11 recreated each time a new order is issued, the burden will multiply. Id. ¶¶ 44-45. 12 III. ARGUMENT 13 A. The All Writs Act Does Not Provide A Basis To Conscript Apple To Create Software Enabling The Government To Hack Into iPhones. 14 The All Writs Act (or the “Act”) does not provide the judiciary with the 15 boundless and unbridled power the government asks this Court to exercise. The Act is 16 intended to enable the federal courts to fill in gaps in the law so they can exercise the 17 authority they already possess by virtue of the express powers granted to them by the 18 Constitution and Congress; it does not grant the courts free-wheeling authority to 19 change the substantive law, resolve policy disputes, or exercise new powers that 20 Congress has not afforded them. Accordingly, the Ninth Circuit has squarely rejected 21 the notion that “the district court has such wide-ranging inherent powers that it can 22 impose a duty on a private party when Congress has failed to impose one. To so rule 23 would be to usurp the legislative function and to improperly extend the limited federal 24 court jurisdiction.” Plum Creek, 608 F.2d at 1290 (emphasis added). 25 Congress has never authorized judges to compel innocent third parties to 26 provide decryption services to the FBI. Indeed, Congress has expressly withheld that 27 authority in other contexts, and this issue is currently the subject of a raging national 28
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1 policy debate among members of Congress, the President, the FBI Director, and state 2 and local prosecutors. Moreover, federal courts themselves have never recognized an 3 inherent authority to order non-parties to become de facto government agents in 4 ongoing criminal investigations. Because the Order is not grounded in any duly 5 enacted rule or statute, and goes well beyond the very limited powers afforded by 6 Article III of the Constitution and the All Writs Act, it must be vacated. 7 1. The All Writs Act Does Not Grant Authority To Compel Assistance Where Congress Has Considered But Chosen Not To Confer Such 8 Authority. 9 The authority the government seeks here cannot be justified under the All Writs 10 Act because law enforcement assistance by technology providers is covered by 11 existing laws that specifically omit providers like Apple from their scope. The All 12 Writs Act authorizes courts to “issue all writs necessary or appropriate in aid of their 13 respective jurisdictions and agreeable to the usages and principles of law,” 28 U.S.C. 14 § 1651(a), but as the Supreme Court has held, it “does not authorize [courts] to issue 15 ad hoc writs whenever compliance with statutory procedures appears inconvenient or 16 less appropriate,” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 38, 43 17 (1985) (holding that the Act did not confer power on the district court to compel non- 18 custodians to bear the expense of producing the prisoner-witnesses); see also In the 19 Matter of an Application of U.S. of Am. for an Order Authorizing Disclosure of 20 Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526, 578 (D. Md. 2011) 21 (holding that the Act does not authorize an “end run around constitutional and statutory 22 law”). The Ninth Circuit likewise has emphasized that the “All Writs Act is not a 23 grant of plenary power to federal courts. Rather, it is designed to aid the courts in the 24 exercise of their jurisdiction.” Plum Creek, 608 F.2d at 1289 (holding that the Act 25 “does not give the district court a roving commission to order a party subject to an 26 investigation to accept additional risks at the bidding” of the government); see also Ex 27 parte Bollman, 8. U.S. 75 (1807) (“[C]ourts which are created by written law, and 28 whose jurisdiction is defined by written law, cannot transcend that jurisdiction.”).
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1 Thus, in another pending case in which the government seeks to compel Apple to assist 2 in obtaining information from a drug dealer’s iPhone, Magistrate Judge Orenstein 3 issued an order stating that while the Act may be appropriately invoked “to fill in a 4 statutory gap that Congress has failed to consider,” it cannot be used to grant the 5 government authority “Congress chose not to confer.” In re Order Requiring Apple, 6 Inc. to Assist in the Execution of a Search Warrant Issued by this Court (“In re 7 Order”), No. 15-MC-1902, 2015 WL 5920207, at *2 (E.D.N.Y. Oct. 9, 2015). 8 Congress knows how to impose a duty on third parties to facilitate the 9 government’s decryption of devices. Similarly, it knows exactly how to place limits 10 on what the government can require of telecommunications carriers and also on 11 manufacturers of telephone equipment and handsets. And in CALEA, Congress 12 decided not to require electronic communication service providers, like Apple, to do 13 what the government seeks here. Contrary to the government’s contention that 14 CALEA is inapplicable to this dispute, Congress declared via CALEA that the 15 government cannot dictate to providers of electronic communications services or 16 manufacturers of telecommunications equipment any specific equipment design or 17 software configuration. 18 In the section of CALEA entitled “Design of features and systems 19 configurations,” 47 U.S.C. § 1002(b)(1), the statute says that it “does not authorize any 20 law enforcement agency or officer— 21 (1) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of 22 a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of 23 telecommunications support services. 24 (2) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication 25 service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services. 26 Apple unquestionably serves as a provider of “electronic communications services” 27 through the various messaging services it provides to its customers through iPhones. 28
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1 See Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 901 (9th Cir. 2008). 2 Apple also makes mobile phones. As such, CALEA does not allow a law enforcement 3 agency to require Apple to implement any specific design of its equipment, facilities, 4 services or system configuration. Yet, that is precisely what the government seeks 5 here. Thus, CALEA’s restrictions are directly on point. 6 Moreover, CALEA also intentionally excludes “information services providers,” 7 like Apple, from the scope of its mandatory assistance provisions.23 This exclusion 8 precludes the government from using the All Writs Act to require Apple to do that 9 which Congress eschewed. But even if Apple were covered by CALEA, the law does 10 not require covered telecommunication carriers (which Apple is not) to be responsible 11 for “decrypting, or ensuring the government’s ability to decrypt, any communication 12 encrypted by a subscriber or customer unless the encryption was provided by the 13 carrier and the carrier possesses the information necessary to decrypt the 14 communication.” 47 U.S.C. § 1002(b)(3) (emphasis added). 15 Thus, here again, CALEA makes a specific choice to allow strong encryption (or 16 any other security feature or configuration) with keys chosen by end users to be 17 deployed, and prevents the government from mandating that such encryption schemes 18 contain a “back door.” See also H.R. Rep. 103-827(I), at 24, 1994 U.S.C.C.A.N. 3489, 19 3504 (emphasizing that CALEA does not “prohibit a carrier from deploying an 20 encryption service for which it does not retain the ability to decrypt communications 21 for law enforcement access”; “[n]or does the Committee intend this bill to be in any 22 way a precursor to any kind of ban or limitation on encryption technology. To the 23 contrary, [§ 1002] protects the right to use encryption.”). 24 Similarly, outside of CALEA, Congress also knows how to require third parties 25 to provide “technical assistance,” see Wiretap Act, 18 U.S.C. § 2518(4) (providing that 26 23 Information service providers are defined to include services that permit a customer 27 to retrieve stored information from, or file information for storage in, information storage facilities; electronic publishing; and electronic messaging services. See 47 28 U.S.C. § 1001.
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1 upon the lawful execution of a wiretap, the government can seek an order compelling a 2 third party to furnish “all information, facilities, and technical assistance necessary to 3 accomplish the interception”); Pen/Trap Statute, id. § 3123(b)(2) (similar), but 4 Congress has intentionally opted not to compel third parties’ assistance in retrieving 5 stored information on devices. That Congress, confronted over the years with the 6 contentious debate about where to draw the lines among competing security and 7 privacy interests, made this decision, “indicates a deliberate congressional choice with 8 which the courts should not interfere.” Cent. Bank of Denver, N.A. v. First Interstate 9 Bank of Denver, N.A., 511 U.S. 164, 184 (1994). The Executive Branch, having 10 considered and then declined to urge Congress to amend CALEA to enable it to 11 compel the type of assistance demanded here, cannot seek that same authority via an ex 12 parte application for a court order under the Act. 13 For the courts to use the All Writs Act to expand sub rosa the obligations 14 imposed by CALEA as proposed by the government here would not just exceed the 15 scope of the statute, but it would also violate the separation-of-powers doctrine. Just 16 as the “Congress may not exercise the judicial power to revise final judgments,” 17 Clinton v. Jones, 520 U.S. 681, 699 (1997) (citing Plaut v. Spendthrift Farm, Inc., 514 18 U.S. 211 (1995)), courts may not exercise the legislative power by repurposing statutes 19 to meet the evolving needs of society, see Clark v. Martinez, 543 U.S. 371, 391 (2005) 20 (court should “avoid inventing a statute rather than interpreting one”) (citation, 21 quotation marks, and alterations omitted); see also Alzheimer’s Inst. of Am. Inc. v. Elan 22 Corp., 2013 WL 8744216, at *2 (N.D. Cal. Jan. 31, 2013) (Congress alone has 23 authority “to update” a “technologically antiquated” statute “to address the new and 24 rapidly evolving era of computer and cloud-stored, processed and produced 25 data”). Nor does Congress lose “its exclusive constitutional authority to make laws 26 necessary and proper to carry out the powers vested by the Constitution” in times of 27 crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 28 579, 588–89 (1952). Because a “decision to rearrange or rewrite [a] statute falls within
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1 the legislative, not the judicial prerogative[,]” the All Writs Act cannot possibly be 2 deemed to grant to the courts the extraordinary power the government seeks. Xi v. 3 INS, 298 F.3d 832, 839 (9th Cir. 2002). 4 If anything, whether companies like Apple should be compelled to create a back 5 door to their own operating systems to assist law enforcement is a political question, 6 not a legal one. See Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that a case is a 7 nonjusticiable political question if it is impossible to decide “without an initial policy 8 determination of a kind clearly for nonjudicial discretion”); see also Vieth v. Jubelirer, 9 541 U.S. 267, 277–290 (2004) (plurality opinion) (dismissing claims of political 10 gerrymandering under the political question doctrine because there was no “judicially 11 discoverable and manageable standard for resolving” them); Diamond v. Chakrabarty, 12 447 U.S. 303, 317 (1980) (“The choice [the court is] urged to make is a matter of high 13 policy for resolution within the legislative process after the kind of investigation, 14 examination, and study that legislative bodies can provide and courts cannot.”); 15 Saldana v. Occidental Petroleum Corp., 774 F.3d 544, 552 (9th Cir. 2014) (per 16 curiam) (affirming district court’s holding that the claims were “inextricably bound to 17 an inherently political question” and thus were “beyond the jurisdiction of our courts”). 18 In short, a decision to “short-circuit public debate on this controversy seems 19 fundamentally inconsistent with the proposition that such important policy issues 20 should be determined in the first instance by the legislative branch after public 21 debate—as opposed to having them decided by the judiciary in sealed, ex parte 22 proceedings.” In re Order, 2015 WL 5920207, at *3 n.1. Such an important decision 23 with such widespread global repercussions goes well beyond the purview of the All 24 Writs Act, which merely provides courts with a limited grant of ancillary authority to 25 issue orders “in aid of their respective jurisdictions.” 28 U.S.C. § 1651(a). 26 27 28
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1 2. New York Telephone Co. And Its Progeny Confirm That The All Writs Act Does Not Authorize Courts To Compel The Unprecedented 2 And Unreasonably Burdensome Conscription Of Apple That The Government Seeks. 3 The government relies heavily on the Supreme Court’s decision in United States 4 v. New York Telephone Co., 434 U.S. 159 (1977), to assert that the All Writs Act 5 permits the Court to compel private third parties like Apple to assist the government in 6 effectuating a search warrant by writing new software code that would undermine the 7 security of its own product. The government misapplies this case. 8 In New York Telephone Co., the district court compelled the company to install a 9 simple pen register device (designed to record dialed numbers) on two telephones 10 where there was “probable cause to believe that the [c]ompany’s facilities were being 11 employed to facilitate a criminal enterprise on a continuing basis.” 434 U.S. at 174. 12 The Supreme Court held that the order was a proper writ under the Act, because it was 13 consistent with Congress’s intent to compel third parties to assist the government in the 14 use of surveillance devices, and it satisfied a three-part test imposed by the Court. 15 First, the Court found that the company was not “so far removed from the 16 underlying controversy that its assistance could not be permissibly compelled.” Id. 17 Second, the assistance sought was “meager,” and as a public utility, the company did 18 not “ha[ve] a substantial interest in not providing assistance.” Id. Third, “after an 19 exhaustive search,” the FBI was unable to find a suitable location to install its own pen 20 registers without tipping off the targets, and thus there was “no conceivable way in 21 which the surveillance authorized by the District Court could have been successfully 22 accomplished” without the company’s meager assistance. Id. at 175. Applying these 23 factors to this case confirms that the All Writs Act does not permit the Court to compel 24 the unprecedented and unreasonably burdensome assistance that the government seeks. 25 a. Apple’s Connection To The Underlying Case Is “Far Removed” 26 And Too Attenuated To Compel Its Assistance 27 Nothing connects Apple to this case such that it can be drafted into government 28 service to write software that permits the government to defeat the security features on
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1 Apple’s standard operating system. Apple is a private company that does not own or 2 possess the phone at issue, has no connection to the data that may or may not exist on 3 the phone, and is not related in any way to the events giving rise to the investigation. 4 This case is nothing like New York Telephone Co., where there was probable cause to 5 believe that the phone company’s own facilities were “being employed to facilitate a 6 criminal enterprise on a continuing basis.” Id. at 174. 7 The government relies on United States v. Hall, 583 F. Supp. 717 (E.D. Va. 8 1984), and In re Application of U.S. of Am. for an Order Directing X to Provide Access 9 to Videotapes (“Videotapes”), 2003 WL 22053105 (D. Md. Aug. 22, 2003), but these 10 cases involved mere requests to produce existing business records, not the compelled 11 creation of intellectual property. In Hall, the court found that the All Writs Act 12 permitted an order compelling a credit card company to produce the credit card records 13 of a federal fugitive’s former girlfriend, because the government had reason to believe 14 that she was harboring and supporting the fugitive, and thus potentially using her credit 15 card to perpetrate an ongoing crime. 583 F. Supp. at 720 (reasoning that a credit card 16 issuer “has an interest” in a transaction “when a credit card is used for an illegal 17 purpose even though the act itself be not illegal”). Similarly, in Videotapes, the court 18 compelled an apartment complex to provide access to videotape surveillance footage 19 of a hallway in the apartment to assist with executing an arrest warrant on a fugitive. 20 2003 WL 22053105, at *3. This case is nothing like Hall and Videotapes, where the 21 government sought assistance effectuating an arrest warrant to halt ongoing criminal 22 activity, since any criminal activity linked to the phone at issue here ended more than 23 two months ago when the terrorists were killed. 24 Further, unlike a telecommunications monopoly, Apple is not a “highly 25 regulated public utility with a duty to serve the public.” New York Telephone Co., 434 26 U.S. at 174; see also Application of U.S. of Am. for an Order Authorizing an In- 27 Progress Trace of Wire Commc’ns over Tel. Facilities (“Mountain Bell”), 616 F.2d 28 1122, 1132 (9th Cir. 1980) (discussing New York Telephone Co. and noting that its
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1 ruling compelling assistance under the All Writs Act relied “[t]o a great extent . . . 2 upon the highly regulated, public nature” of the phone company); In re Order, 2015 3 WL 5920207, at *4–5. Whereas public utilities have no “substantial interest in not 4 providing assistance” to the government, 434 U.S. at 174, and “enjoy a monopoly in an 5 essential area of communications,” Mountain Bell, 616 F.2d at 1131, Apple is a private 6 company that believes that encryption is crucial to protect the security and privacy 7 interests of citizens who use and store their most personal data on their iPhones, “from 8 our private conversations to our photos, our music, our notes, our calendars and 9 contacts, our financial information and health data, even where we have been and 10 where we are going.” Hanna Decl. Ex. D at 1 [Apple Inc., A Message to Our 11 Customers (Feb. 16, 2016)]. 12 That Apple “designed, manufactured and sold the SUBJECT DEVICE, and 13 wrote and owns the software that runs the phone,” Memorandum of Points and 14 Authorities in Support of Government’s Ex Parte Application for Order Compelling 15 Apple Inc. to Assist Agents in Search, In the Matter of the Search of an Apple iPhone 16 Seized During the Execution of a Search Warrant on a Black Lexus IS300, Cal. 17 License Plate 35KGD203, No. ED 15-0451M (Feb. 16, 2016), Dkt. 18 at 11 (the “Ex 18 Parte App.”), is insufficient to establish the connection mandated by New York 19 Telephone Co. The All Writs Act does not allow the government to compel a 20 manufacturer’s assistance merely because it has placed a good into the stream of 21 commerce. Apple is no more connected to this phone than General Motors is to a 22 company car used by a fraudster on his daily commute. Moreover, that Apple’s 23 software is “licensed, not sold,” Ex Parte App. at 5, is “a total red herring,” as Judge 24 Orenstein already concluded, Hanna Decl. Ex. DD at 42:4–10 [In re Order Requiring 25 Apple Inc. to Assist in the Execution of a Search Warrant Issued by the Court, 26 E.D.N.Y No. 15 MC 1902, Dkt. 19 (“October 26, 2015 Transcript”)]. A licensing 27 agreement no more connects Apple to the underlying events than a sale. The license 28 does not permit Apple to invade or control the private data of its customers. It merely
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1 limits customers’ use and redistribution of Apple’s software. Indeed, the government’s 2 position has no limits and, if accepted, would eviscerate the “remoteness” factor 3 entirely, as any company that offers products or services to consumers could be 4 conscripted to assist with an investigation, no matter how attenuated their connection 5 to the criminal activity. This is not, and never has been, the law. 6 b. The Order Requested By The Government Would Impose An Unprecedented And Oppressive Burden On Apple And Citizens 7 Who Use The iPhone. 8 An order pursuant to the All Writs Act “must not [1] adversely affect the basic 9 interests of the third party or [2] impose an undue burden.” Hall, 583 F. Supp. at 719. 10 The Order violates both requirements by conscripting Apple to develop software that 11 does not exist and that Apple has a compelling interest in not creating. The 12 government’s request violates the first requirement—that the Act “must not adversely 13 affect the basic interests of the third party”—because Apple has a strong interest in 14 safeguarding its data protection systems that ensure the security of hundreds of 15 millions of customers who depend on and store their most confidential data on their 16 iPhones. An order compelling Apple to create software that defeats those safeguards 17 undeniably threatens those systems and adversely affects Apple’s interests and those of 18 iPhone users around the globe. See id. 19 The government’s request violates the second requirement—that the Act “must 20 not . . . impose an undue burden”—because the government’s unprecedented demand 21 forces Apple to develop new software that destroys the security features that Apple has 22 spent years building. As discussed supra in section II.E, no operating system currently 23 exists that can accomplish what the government wants, and any effort to create one 24 would require that Apple write new code, not just disable existing functionality. 25 Neuenschwander Decl. ¶¶ 23-25. Experienced Apple engineers would have to design, 26 create, test, and validate the compromised operating system, using a hyper-secure 27 isolation room within which to do it, and then deploy and supervise its operation by the 28 FBI to brute force crack the phone’s passcode. Id. ¶¶ 21-43; Olle Decl. ¶ 14. The
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1 system itself would have to be tested on multiple devices to ensure that the operating 2 system works and does not alter any data on the device. Neuenschwander ¶¶ 30-31. 3 All aspects of the development and testing processes would need to be logged and 4 recorded in case Apple’s methodology is ever questioned. Id. ¶¶ 28, 33. 5 Moreover, the government’s flawed suggestion to delete the program and erase 6 every trace of the activity would not lessen the burden, it would actually increase it 7 since there are hundreds of demands to create and utilize the software waiting in the 8 wings. Id. ¶¶ 38-45. If Apple creates new software to open a back door, other federal 9 and state prosecutors—and other governments and agencies—will repeatedly seek 10 orders compelling Apple to use the software to open the back door for tens of 11 thousands of iPhones. Indeed, Manhattan District Attorney Cyrus Vance, Jr., has made 12 clear that the federal and state governments want access to every phone in a criminal 13 investigation.24 See Hanna Decl., Ex. Z [(Cyrus R. Vance, Jr., No Smartphone Lies 14 Beyond the Reach of a Judicial Search Warrant, N.Y. Times (Feb. 18, 2016)]; Hanna 15 Decl. ¶ 5 at 18:28 [Charlie Rose, Television Interview of Cyrus Vance (Feb. 18, 2016)] 16 (Vance stating “absolutely” that he “want[s] access to all those phones that [he thinks] 17 are crucial in a criminal proceeding”). This enormously intrusive burden—building 18 everything up and tearing it down for each demand by law enforcement—lacks any 19 support in the cases relied on by the government, nor do such cases exist. 20 21 24 Use of the software in criminal prosecutions only exacerbates the risk of disclosure, 22 given that criminal defendants will likely challenge its reliability. See Fed. R. Evid. 702 (listing requirements of expert testimony, including that “testimony [be] the 23 product of reliable principles and methods” and “the expert has reliably applied the principles and methods to the facts of the case,” all of which a defendant is entitled 24 to challenge); see also United States v. Budziak, 697 F.3d 1105, 1111–13 (9th Cir. 2012) (vacating order denying discovery of FBI software); State v. Underdahl, 767 25 N.W.2d 677, 684–86 (Minn. 2009) (upholding order compelling discovery of breathalyzer source code). The government’s suggestion that Apple can destroy the 26 software has clearly not been thought through, given that it would jeopardize criminal cases. See United States v. Cooper, 983 F.2d 928, 931–32 (9th Cir. 1993) 27 (government’s bad-faith failure to preserve laboratory equipment seized from defendants violated due process, and appropriate remedy was dismissal of 28 indictment, rather than suppression of evidence).
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1 The alternative—keeping and maintaining the compromised operating system 2 and everything related to it—imposes a different but no less significant burden, i.e., 3 forcing Apple to take on the task of unfailingly securing against disclosure or 4 misappropriation the development and testing environments, equipment, codebase, 5 documentation, and any other materials relating to the compromised operating system. 6 Id. ¶ 47. Given the millions of iPhones in use and the value of the data on them, 7 criminals, terrorists, and hackers will no doubt view the code as a major prize and can 8 be expected to go to considerable lengths to steal it, risking the security, safety, and 9 privacy of customers whose lives are chronicled on their phones. Indeed, as the 10 Supreme Court has recognized, “[t]he term ‘cell phone’ is itself misleading shorthand; 11 . . . these devices are in fact minicomputers” that “could just as easily be called 12 cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, 13 televisions, maps, or newspapers.” Riley v. California, 134 S. Ct. 2473, 2488–89 14 (2014) (observing that equating the “data stored on a cell phone” to “physical items” 15 “is like saying a ride on horseback is materially indistinguishable from a flight to the 16 moon”). By forcing Apple to write code to compromise its encryption defenses, the 17 Order would impose substantial burdens not just on Apple, but on the public at large. 18 And in the meantime, nimble and technologically savvy criminals will continue to use 19 other encryption technologies, while the law-abiding public endures these threats to 20 their security and personal liberties—an especially perverse form of unilateral 21 disarmament in the war on terror and crime. See n.4 supra (describing ISIS’s shift to 22 more secure communication methods). 23 In addition, compelling Apple to create software in this case will set a dangerous 24 precedent for conscripting Apple and other technology companies to develop 25 technology to do the government’s bidding in untold future criminal investigations. If 26 the government can invoke the All Writs Act to compel Apple to create a special 27 operating system that undermines important security measures on the iPhone, it could 28 argue in future cases that the courts should compel Apple to create a version to track
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1 the location of suspects, or secretly use the iPhone’s microphone and camera to record 2 sound and video. And if it succeeds here against Apple, there is no reason why the 3 government could not deploy its new authority to compel other innocent and unrelated 4 third-parties to do its bidding in the name of law enforcement. For example, under the 5 same legal theories advocated by the government here, the government could argue 6 that it should be permitted to force citizens to do all manner of things “necessary” to 7 assist it in enforcing the laws, like compelling a pharmaceutical company against its 8 will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully 9 issued death warrant,25 or requiring a journalist to plant a false story in order to help 10 lure out a fugitive, or forcing a software company to insert malicious code in its auto- 11 update process that makes it easier for the government to conduct court-ordered 12 surveillance. Indeed, under the government’s formulation, any party whose assistance 13 is deemed “necessary” by the government falls within the ambit of the All Writs Act 14 and can be compelled to do anything the government needs to effectuate a lawful court 15 order. While these sweeping powers might be nice to have from the government’s 16 perspective, they simply are not authorized by law and would violate the Constitution. 17 Moreover, responding to these demands would effectively require Apple to 18 create full-time positions in a new “hacking” department to service government 19 requests and to develop new versions of the back door software every time iOS 20 changes, and it would require Apple engineers to testify about this back door as 21 government witnesses at trial. See, e.g., United States v. Cameron, 699 F.3d 621, 643– 22 44 (1st Cir. 2012) (holding that reports generated by an Internet provider were 23 testimonial, and thus could not be admitted without “giving [defendant] the 24 opportunity to cross-examine the [provider’s] employees who prepared the [] 25 [r]eports”). Nothing in federal law allows the courts, at the request of prosecutors, to 26
25 27 Magistrate Judge Orenstein posed this same hypothetical to the government, and the government had no answer. Hanna Decl. Ex. DD at 43–47 [October 26, 2015 28 Transcript].
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1 coercively deputize Apple and other companies to serve as a permanent arm of the 2 government’s forensics lab. Indeed, the government fails to cite any case—because 3 none exists—to support its incorrect contention that courts have invoked the All Writs 4 Act to conscript a company like Apple to “to write some amount of code in order to 5 gather information in response to subpoenas or other process.” Ex Parte App. at 15. 6 The burden imposed on Apple is thus in sharp contrast to New York Telephone 7 Co., where the public utility was compelled to provide “meager assistance” in setting 8 up a pen register—a step which “required minimal effort on the part of the [c]ompany 9 and no disruption to its operations.” 434 U.S. at 174–75 (noting that the company 10 routinely employed pen registers without court order for purposes of checking billing 11 operations and detecting fraud); see also Mountain Bell, 616 F.2d at 1132 (order 12 compelling the phone company to use a tracing technique akin to a pen register did not 13 impose a substantial burden because it “was extremely narrow in scope,” and 14 “prohibit[ed] any tracing technique which required active monitoring by company 15 personnel”). The very limited orders in those cases thus “should not be read to 16 authorize the wholesale imposition upon private, third parties of duties pursuant to 17 search warrants.” Id. 18 The other cases the government relies on involve similarly inconsequential 19 burdens where third parties were asked to turn over records that were already in their 20 possession or readily accessible, Videotapes, 2003 WL 22053105, at *3 (directing 21 apartment complex owner to share surveillance footage “maintained in the ordinary 22 course of business”); Hall, 583 F. Supp. at 722 (directing bank to produce credit card 23 records), or where the third party provided minimal assistance to effect a lawful 24 wiretap, In re Application of U.S. of Am. for an Order Directing a Provider of 25 Commc’n Servs. to Provide Tech. Assistance to Agents of the U.S. Drug Enf’t Admin., 26 2015 WL 5233551, at *5 (D.P.R. Aug. 27, 2015). But unlike those cases, where the 27 government directed a third party to provide something that already existed or sought 28 assistance with a minimal and routine service, here the government wants to compel
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1 Apple to deploy a team of engineers to write and test software code and create a new 2 operating system that undermines the security measures it has worked so hard to 3 establish—and then to potentially do that over and over again as other federal, state, 4 local and foreign prosecutors make demands for the same thing. 5 The government’s reliance on two phone “unlocking” cases is similarly 6 misplaced. Ex Parte App. at 9 (citing United States v. Navarro, No. 13-CR-5525 7 (W.D. Wash. Nov. 13, 2013), ECF No. 39; In re Order Requiring [XXX], Inc. to Assist 8 in the Execution of a Search Warrant Issued by This Court by Unlocking a Cellphone, 9 2014 WL 5510865, at *2 (S.D.N.Y. Oct. 31, 2014) (“Order Requiring [XXX]”). As an 10 initial matter, the Navarro order is a minute order that does not contain any analysis of 11 the All Writs Act, and it is unclear whether its limitations were ever raised or 12 considered. The Navarro order is also distinguishable because it involved the 13 government’s request to unlock an iPhone on an older operating system that did not 14 require the creation of any new software. Order Requiring [XXX], which was also 15 issued without the benefit of adversarial briefing, is equally unavailing. 2014 WL 16 5510865, at *3 (granting ex parte application to compel a third party to bypass a lock 17 screen on a phone to effectuate a search warrant). Although the court purported to 18 apply New York Telephone Co., it did not analyze all of the factors set forth in that 19 case, such as whether the All Writs Act could be used to compel third parties to hack 20 into phones, whether the cellphone company was “too far removed” from the matter, 21 or whether hacking into the phone adversely affected the company’s interests. Rather, 22 the court simply concluded the technical service sought was not “burdensome,” akin to 23 “punching a few buttons” or installing a pen register. 2014 WL 5510865, at *2 24 (internal quotation marks omitted). As Apple has explained, the technical assistance 25 sought here requires vastly more than simply pressing a “few buttons.” 26 The government has every right to reasonably involve the public in the law 27 enforcement process. Indeed, each year Apple complies with thousands of lawful 28 requests for data and information by law enforcement, and on many occasions has
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1 extracted data from prior versions of its operating system for the FBI’s use. See Olle 2 Decl. ¶¶ 15-16. But compelling minimal assistance to surveil or apprehend a criminal 3 (as in most of the cases the government cites), or demanding testimony or production 4 of things that already exist (akin to exercising subpoena power), is vastly different, and 5 significantly less intrusive, than conscripting a private company to create something 6 entirely new and dangerous. There is simply no parallel or precedent for it. 7 c. The Government Has Not Demonstrated Apple’s Assistance Was Necessary To Effectuating The Warrant. 8 A third party cannot be compelled to assist the government unless the 9 government is authorized to act and the third party’s participation is imperative. The 10 order in New York Telephone Co. satisfied that requirement because the court had 11 authorized surveillance, and “there [was] no conceivable way” to accomplish that 12 surveillance without the company’s assistance. 434 U.S. at 175 (noting that FBI had 13 conducted “an exhaustive search” for a way to install a pen register in an undetectable 14 location). The order compelling the phone company’s assistance was therefore 15 necessary “to prevent nullification of the court’s warrant” and “to put an end to this 16 venture.” Id. at 174, 175 & n.23; see also Mountain Bell, 616 F.2d at 1129 (holding 17 that an order compelling a third party to assist with tracing was necessary to carry out a 18 wiretap and halt ongoing criminal activity); Mich. Bell Telephone Co. v. United States, 19 565 F.2d 385, 389 (6th Cir. 1977) (concluding that telephone company was “the only 20 entity that c[ould] effectuate the order of the district court to prevent company-owned 21 facilities from being used in violation of both state and federal laws”). 22 Here, by contrast, the government has failed to demonstrate that the requested 23 order was absolutely necessary to effectuate the search warrant, including that it 24 exhausted all other avenues for recovering information. Indeed, the FBI foreclosed 25 one such avenue when, without consulting Apple or reviewing its public guidance 26 regarding iOS, the government changed the iCloud password associated with an 27 attacker’s account, thereby preventing the phone from initiating an automatic iCloud 28
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1 back-up. See supra II.C. Moreover, the government has not made any showing that it 2 sought or received technical assistance from other federal agencies with expertise in 3 digital forensics, which assistance might obviate the need to conscript Apple to create 4 the back door it now seeks. See Hanna Decl. Ex. DD at 34–36 [October 26, 2015 5 Transcript] (Judge Orenstein asking the government “to make a representation for 6 purposes of the All Writs Act” as to whether the “entire Government,” including the 7 “intelligence community,” did or did not have the capability to decrypt an iPhone, and 8 the government responding that “federal prosecutors don’t have an obligation to 9 consult the intelligence community in order to investigate crime”). As such, the 10 government has not demonstrated that “there is no conceivable way” to extract data 11 from the phone. New York Tel. Co., 434 U.S. at 174. 12 3. Other Cases The Government Cites Do Not Support The Type Of Compelled Action Sought Here. 13 The government does not cite a single case remotely approximating the demand 14 it makes here; indeed, its cases only confirm the wild overreach of the Order. 15 The government relies, for example, on cases compelling a criminal defendant 16 to take certain actions—specifically, United States v. Fricosu, 841 F. Supp. 2d 1232 17 (D. Colo. 2012) and United States v. Catoggio, 698 F.3d 64 (2d Cir. 2012) (per 18 curiam)—but those cases say nothing about the propriety of compelling an innocent 19 third party to do so. In Fricosu the government moved to require the defendant to 20 produce the “unencrypted contents” of her laptop computer. 841 F. Supp. 2d at 1235. 21 This order placed no undue burden on the defendant because she could access the 22 encrypted contents on her computer, and the court preserved her Fifth Amendment 23 rights by not compelling the password itself, which was testimonial in nature. See id. 24 at 1236–38. By contrast, the government’s request here creates an unprecedented 25 burden on Apple and violates Apple’s First Amendment rights against compelled 26 speech, as discussed below. And unlike the compelled creation of a compromised 27 operating system for iOS devices, the order in Fricosu merely required the defendant 28
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1 to hand over her own personal files, and thus posed no risk to third parties’ privacy or 2 security interests. 3 The government’s reliance on Catoggio, which involved the seizure of 4 defendant’s property, is also inapt. Though the district court had not invoked the All 5 Writs Act, the appellate court cited the Act in affirming the district court’s order 6 retaining a convicted defendant’s property in anticipation of a restitution order. 698 7 F.3d at 68–69. But whereas courts have uniformly held that the Act enables a court to 8 restrain a convicted defendant’s property pending a restitution order, id. at 67, no court 9 has ever held that the All Writs Act permits the government to conscript a private 10 company to build software for it. 11 Finally, the government relies on the Ninth Circuit’s decision in Plum Creek— 12 but that case only serves to illustrate the government’s vast overreach under the All 13 Writs Act. There, the Ninth Circuit affirmed the district court’s order declining 14 OSHA’s request to compel an employer to rescind a company policy forbidding 15 employees from wearing OSHA air-quality and noise-level testing devices, so that 16 OSHA could more efficiently investigate the company’s premises. 608 F.2d at 1289– 17 90. The court reasoned that a government agency’s interest in conducting an efficient 18 investigation is not grounds for issuing a writ requiring a company to comply with the 19 government’s demands. Id. at 1290. This was particularly true where OSHA “c[ould] 20 not guarantee that these devices would [not] cause” industry accidents, and the 21 company bore the costs of those accidents. Id. at 1289 & n.4 (internal quotation marks 22 omitted). Even though the investigation would take five times as long to complete 23 without the use of the equipment OSHA sought to compel, the court could not compel 24 their use absent a law requiring it. Id. at 1289 & n.6. The court held that the All Writs 25 Act “does not give the district court a roving commission to order a party subject to an 26 investigation to accept additional risks at the bidding of OSHA inspectors.” Id. at 27 1289. Plum Creek thus provides no support for the government’s attempt to compel 28 Apple to create new software “when Congress has failed to impose” such a duty on
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1 Apple. Id. at 1290. Forcing Apple to write software that would create a back door to 2 millions of iOS devices would not only “usurp the legislative function,” id., but also 3 unconstitutionally compel speech and expose Apple iPhone users to exceptional 4 security and privacy risks. 5 B. The Order Would Violate The First Amendment And The Fifth Amendment’s Due Process Clause. 6 1. The First Amendment Prohibits The Government From Compelling 7 Apple To Create Code 8 The government asks this Court to command Apple to write software that will 9 neutralize safety features that Apple has built into the iPhone in response to consumer 10 privacy concerns. Order ¶ 2. The code must contain a unique identifier “so that [it] 11 would only load and execute on the SUBJECT DEVICE,” and it must be “‘signed’ 12 cryptographically by Apple using its own proprietary encryption methods.” Ex Parte 13 App. at 5, 7. This amounts to compelled speech and viewpoint discrimination in 14 violation of the First Amendment. 15 Under well-settled law, computer code is treated as speech within the meaning 16 of the First Amendment. See, e.g., Universal City Studios, Inc. v. Corley, 273 F.3d 17 429, 449 (2d Cir. 2001); Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000); 321 18 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1099–1100 19 (N.D. Cal. 2004); United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1126 (N.D. Cal. 20 2002); Bernstein v. Dep’t of State, 922 F. Supp. 1426, 1436 (N.D. Cal. 1996). 21 The Supreme Court has made clear that where, as here, the government seeks to 22 compel speech, such action triggers First Amendment protections. As the Court 23 observed in Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781,796 (1988), 24 while “[t]here is certainly some difference between compelled speech and compelled 25 silence, . . . in the context of protected speech, the difference is without constitutional 26 significance.” Compelled speech is a content-based restriction subject to exacting 27 scrutiny, id. at 795, 797–98, and so may only be upheld if it is narrowly tailored to 28
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1 obtain a compelling state interest, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 2 662 (1994). 3 The government cannot meet this standard here. Apple does not question the 4 government’s legitimate and worthy interest in investigating and prosecuting terrorists, 5 but here the government has produced nothing more than speculation that this iPhone 6 might contain potentially relevant information.26 Hanna Decl. Ex. H [Comey, Follow 7 This Lead] (“Maybe the phone holds the clue to finding more terrorists. Maybe it 8 doesn’t.”). It is well known that terrorists and other criminals use highly sophisticated 9 encryption techniques and readily available software applications, making it likely that 10 any information on the phone lies behind several other layers of non-Apple encryption. 11 See Hanna Decl. Ex. E [Coker, Tech Savvy] (noting that the Islamic State has issued to 12 its members a ranking of the 33 most secure communications applications, and “has 13 urged its followers to make use of [one app’s] capability to host encrypted group 14 chats”). 15 Even more problematically, the Court’s Order discriminates on the basis of 16 Apple’s viewpoint. When Apple designed iOS 8, it wrote code that announced the 17 value it placed on data security and the privacy of citizens by omitting a back door that 18 bad actors might exploit. See, e.g., Hanna Decl. Ex. AA [Apple Inc., Privacy, 19 Government Information Requests]. The government disagrees with this position and 20 asks this Court to compel Apple to write new software that advances its contrary 21 views. This is, in every sense of the term, viewpoint discrimination that violates the 22
26 23 If the government did have any leads on additional suspects, it is inconceivable that it would have filed pleadings on the public record, blogged, and issued press 24 releases discussing the details of the situation, thereby thwarting its own efforts to apprehend the criminals. See Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 25 211, 218-19 (1979) (“We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. . . . 26 [I]f preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom 27 they testify would be aware of that testimony. . . . There also would be the risk that those about to be indicted would flee, or would try to influence individual grand 28 jurors to vote against indictment.”).
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1 First Amendment. See Members of City Council v. Taxpayers for Vincent, 466 U.S. 2 789, 804 (1984). 3 Finally, the FBI itself foreclosed what would have likely been a promising and 4 vastly narrower alternative to this unprecedented order: backing up the iPhone to 5 iCloud. Apple has extensively cooperated and assisted law enforcement officials in the 6 San Bernardino investigation, but the FBI inadvertently foreclosed a ready avenue by 7 changing the passcode, which precluded the iCloud back-up option.27 8 To avoid the serious First Amendment concerns that the government’s request to 9 compel speech presents, this Court should vacate the Order. 10 2. The Fifth Amendment’s Due Process Clause Prohibits The Government From Compelling Apple To Create The Request Code 11 In addition to violating the First Amendment, the government’s requested order, 12 by conscripting a private party with an extraordinarily attenuated connection to the 13 crime to do the government’s bidding in a way that is statutorily unauthorized, highly 14 burdensome, and contrary to the party’s core principles, violates Apple’s substantive 15 due process right to be free from “‘arbitrary deprivation of [its] liberty by 16 government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th 17 Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 18 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of 19 due process is protection of the individual against arbitrary action of government,’ . . . 20 [including] the exercise of power without any reasonable justification in the service of 21 a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due 22 process are not . . . subject to mechanical application in unfamiliar territory.”). 23 24 25
27 26 Hanna Decl. Ex. BB [John Paczkowski and Chris Geidner, FBI Admits It Urged Change Of Apple ID Password For Terrorist’s iPhone, BuzzFeed News (updated 27 Feb. 21, 2016 2:01 AM)]; Hanna Decl. Ex. CC [Ellen Nakashima and Mark Berman, FBI Asked San Bernardino to Reset the Password for Shooter’s Phone 28 Backup, Wash. Post (Feb. 20, 2016)].
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1 IV. CONCLUSION 2 Apple has great respect for the professionals at the Department of Justice and 3 FBI, and it believes their intentions are good. Moreover, Apple has profound 4 sympathy for the innocent victims of the attack and their families. However, while the 5 government’s desire to maximize security is laudable, the decision of how to do so 6 while also protecting other vital interests, such as personal safety and privacy, is for 7 American citizens to make through the democratic process. Indeed, examples abound 8 of society opting not to pay the price for increased and more efficient enforcement of 9 criminal laws. For example, society does not tolerate violations of the Fifth 10 Amendment privilege against self-incrimination, even though more criminals would be 11 convicted if the government could compel their confessions. Nor does society tolerate 12 violations of the Fourth Amendment, even though the government could more easily 13 obtain critical evidence if given free rein to conduct warrantless searches and seizures. 28 29 14 At every level of our legal system—from the Constitution, to our statutes, common 30 31 32 15 law, rules, and even the Department of Justice’s own policies —society has acted 16 to preserve certain rights at the expense of burdening law enforcement’s interest in 17 investigating crimes and bringing criminals to justice. Society is still debating the 18 important privacy and security issues posed by this case. The government’s desire to 19 leave no stone unturned, however well intentioned, does not authorize it to cut off 20 debate and impose its views on society. 21 28 See, e.g., U.S. Const. amend. IV (limitations on searches and seizures), amend. V 22 (limitations on charging; prohibition on compelling testimony of accused). 29 See, e.g., 18 U.S.C. § 3282 (prohibition on prosecuting crimes more than five years’ 23 old), CALEA (limitations on ability to intercept communications). 30 24 E.g., attorney-client privilege, spousal privilege, and reporter’s privilege, and priest- penitent privilege, all of which limit the government’s ability to obtain evidence. 25 31 See, e.g., Fed. R. Evid. 404 (limitations on use of character evidence), 802 (limitations on use of hearsay). 26 32 See, e.g., U.S. Attorneys’ Manual §§ 9-13-200 (limitations on communicating with 27 witnesses represented by counsel), 9-13.400 (limitations on subpoenaing news media), 9-13-410 (limitations on subpoenaing attorneys), 9-13-420 (limitations on 28 searches of attorneys’ offices).
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1 Dated: February 25, 2016 Respectfully submitted, 2 GIBSON, DUNN & CRUTCHER LLP 3 By: /s/ Theodore J. Boutrous Jr. 4 Theodore J. Boutrous, Jr.
5 Theodore J. Boutrous, Jr. Nicola T. Hanna 6 Eric D. Vandevelde Gibson, Dunn & Crutcher LLP 7 333 South Grand Avenue 8 Los Angeles, CA 90071-3197 Telephone: 213.229.7000 9 Facsimile: 213.229.7520
10 Theodore B. Olson 11 Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. 12 Washington, DC 20036-5306 Telephone: 202.955.8500 13 Facsimile: 202.467.0539
14 Marc J. Zwillinger * 15 Jeffrey G. Landis * ZwillGen PLLC 16 1900 M Street N.W., Suite 250 Washington, D.C. 20036 17 Telephone: 202.706.5202 Facsimile: 202.706.5298 18 *Pro Hac Vice Admission Pending
19 Attorneys for Apple Inc. 20 21 22 23 24 25 26 27 28
Gibson, Dunn & Crutcher LLP 36 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 1 of 43 Page ID #:2094 77
1 EILEEN M. DECKER United States Attorney 2 PATRICIA A. DONAHUE Assistant United States Attorney 3 Chief, National Security Division TRACY L. WILKISON (California Bar No. 184948) 4 Chief, Cyber and Intellectual Property Crimes Section Assistant United States Attorney 5 1500 United States Courthouse 312 North Spring Street 6 Los Angeles, California 90012 Telephone: (213) 894-2400 7 Facsimile: (213) 894-8601 Email: [email protected] 8 Attorneys for Applicant 9 UNITED STATES OF AMERICA
10 UNITED STATES DISTRICT COURT
11 FOR THE CENTRAL DISTRICT OF CALIFORNIA
12 IN THE MATTER OF THE SEARCH ED No. CM 16-10 (SP) OF AN APPLE IPHONE SEIZED 13 DURING THE EXECUTION OF A GOVERNMENT’S REPLY IN SUPPORT SEARCH WARRANT ON A BLACK OF MOTION TO COMPEL AND 14 LEXUS IS300, CALIFORNIA OPPOSITION TO APPLE INC.’S LICENSE PLATE #5KGD203 MOTION TO VACATE ORDER 15 DECLARATIONS OF STACEY PERINO, 16 CHRISTOPHER PLUHAR, AND TRACY WILKISON, AND EXHIBITS FILED 17 CONCURRENTLY
18 Hearing Date: March 22, 2016 Hearing Time: 1:00 p.m. 19 Location: Courtroom of the Hon. Sheri Pym 20
21
22 Applicant United States of America, by and through its counsel of record, the 23 United States Attorney for the Central District of California, hereby files its Reply in 24 Support of the Government’s Motion to Compel and Opposition to Apple Inc.’s Motion 25 to Vacate this Court’s February 16, 2016 Order Compelling Apple To Assist Agents In 26 Its Search. 27 This Reply and Opposition is based upon the attached memorandum of points and 28 authorities, the concurrently filed declarations of Federal Bureau of Investigation
Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 2 of 43 Page ID #:2095 78
1 (“FBI”) Technical Director of the Cryptologic and Electronic Analysis Unit Stacey 2 Perino, FBI Supervisory Special Agent Christopher Pluhar, and Assistant United States 3 Attorney Tracy Wilkison, with attached exhibits, the files and records in this case, and 4 such further evidence and argument as this Court may permit. 5 6 Dated: March 10, 2016 Respectfully submitted,
7 EILEEN M. DECKER United States Attorney 8 PATRICIA A. DONAHUE 9 Assistant United States Attorney Chief, National Security Division 10
11
12 TRACY L. WILKISON Assistant United States Attorney 13 Attorneys for Applicant 14 UNITED STATES OF AMERICA
15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 3 of 43 Page ID #:2096 79
1 TABLE OF CONTENTS 2 DESCRIPTION PAGE 3 TABLE OF AUTHORITIES ...... ii 4 I. INTRODUCTION ...... 1 5 II. ARGUMENT ...... 3 6 A. The All Writs Act Is an Integral Part of Our Justice System ...... 3 7 B. Through the All Writs Act, Congress Has Empowered the Court to Decide the Fact-Specific Matter Before It ...... 6 8 1. This Case Must Be Decided on Its Facts ...... 6 9 2. Congressional Inaction Does Not Preclude an AWA Order ...... 8 10 3. CALEA Does Not Forbid the Order ...... 10 11 C. The Order Is Proper Under New York Telephone and the AWA ...... 12 12 1. Apple Is Closely Connected to the Underlying Controversy ...... 13 13 2. The Burden Placed on Apple Is Not Undue and Unreasonable ...... 17 14 a. Writing Code Is Not a Per Se Undue Burden ...... 18 15 b. Apple’s Proffered Estimate of Employee Time Does Not 16 Establish an Undue Burden ...... 21 17 c. Impinging on Apple’s Marketing of Its Products as Search-Warrant-Proof Is Not an Undue Burden ...... 22 18 d. Apple’s Speculation that Third Parties Could Be Harmed 19 in the Future if It Complies With the Order Does Not Establish an Undue Burden on Apple ...... 23 20 e. Cumulative Future Compliance Costs Should Not Be 21 Considered and Are, In Any Event, Compensable ...... 27 22 3. Apple’s Assistance Is Necessary ...... 28 23 D. The Order Does Not Implicate, Let Alone Violate, the First and Fifth Amendments ...... 31 24 1. Incidentally Requiring a Corporation to Add Functional Source 25 Code to a Commercial Product Does Not Violate the First Amendment ...... 31 26 2. There Is No Due Process Right Not to Develop Source Code ...... 34 27 III. CONCLUSION ...... 35 28 i Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 4 of 43 Page ID #:2097 80
1 TABLE OF AUTHORITIES 2 DESCRIPTION PAGE 3 Cases 4 Am. Council on Educ. v. F.C.C., 5 451 F.3d 226 (D.C. Cir. 2006) ...... 11 6 Application of United States, 7 610 F.2d 1148 (3d Cir. 1979) ...... 19 8 Baker v. Carr, 9 369 U.S. 186 (1962)...... 8 10 Bank of U.S. v. Halstead, 11 23 U.S. (10 Wheat.) 51 (1825) ...... 3, 8, 9, 10 12 Bankers Life & Casualty Co v. Holland, 13 346 U.S. 379 (1953)...... 10 14 Blair v. United States, 15 250 U.S. 279 (1919)...... 28 16 Branzburg v. Hayes, 17 408 U.S. 665 (1972)...... 34 18 Carrington v. United States, 19 503 F.3d 888 (9th Cir. 2007) ...... 10 20 Cheney v. U.S. Dist. Court, 21 542 U.S. 367 (2004)...... 13 22 Company v. United States, 23 349 F.3d 1132 (9th Cir. 2003) ...... 11 24 County of Sacramento v. Lewis, 25 523 U.S. 833 (1998)...... 35 26 Diamond v. Chakrabarty, 27 447 U.S. 303 (1980)...... 7 28 ii Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 5 of 43 Page ID #:2098 81
1 TABLE OF AUTHORITIES (CONTINUED) 2 DESCRIPTION PAGE 3 Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 4 344 F.3d 832 (9th Cir. 2003) ...... 33 5 F.T.C. v. Dean Foods Co., 6 384 U.S. 597 (1966)...... 9 7 Full Value Advisors, LLC v. S.E.C., 8 633 F.3d 1101 (D.C. Cir. 2011) ...... 33 9 Gonzalez v. Google, 10 234 F.R.D. 674 (N.D. Cal. 2006) ...... 19 11 Haig v. Agee, 12 453 U.S. 280 (1981)...... 19 13 In re Access to Videotapes, 14 2003 WL 22053105 (D. Md. 2003) ...... 14 15 In re Order Authorizing the Use of a Pen Register, 16 538 F.2d 956 (2d Cir. 1976) ...... 5 17 In re Under Seal, 18 749 F.3d 276 (4th Cir. 2014) ...... 22 19 In re XXX Inc., 20 2014 WL 5510865 (S.D.N.Y. 2014) ...... 13 21 Jacobs v. Clark Cty. Sch. Dist., 22 526 F.3d 419 (9th Cir. 2008) ...... 34 23 Karn v. United States Department of State, 24 925 F. Supp. 1 (D.D.C. 1996) ...... 32 25 Levine v. United States, 26 362 U.S. 610 (1960)...... 3 27 Michigan Bell Tel. Co. v. United States, 28 565 F.2d 385 (6th Cir. 1977) ...... 5 iii Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 6 of 43 Page ID #:2099 82
1 TABLE OF AUTHORITIES (CONTINUED) 2 DESCRIPTION PAGE 3 Murphy v. Waterfront Comm’n of New York Harbor, 4 378 U.S. 52 (1964)...... 31 5 Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 6 474 U.S. 34 (1985)...... 10 7 Plum Creek Lumber Co. v. Hutton, 8 608 F.2d 1283 (9th Cir. 1979) ...... 20 9 Price v. Johnston, 10 334 U.S. 266 (1948)...... 4, 10 11 Railway Mail Assn. v. Corsi, 12 326 U.S. 88 (1945)...... 6, 30 13 Riley v. California, 14 134 S. Ct. 2473 (2014) ...... 1, 7, 31 15 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 16 547 U.S. 47 (2006)...... 31, 33, 34 17 Simmons v. United States, 18 390 U.S. 377 (1968)...... 31 19 In re Application of United States for an Order Authorizing an In-Progress 20 Trace of Wire Commc’ns over Tel. Facilities (Mountain Bell), 21 616 F.2d 1122 (9th Cir. 1980) ...... passim 22 U.S. Telecom Ass’n v. F.C.C., 23 227 F.3d 450 (D.C. Cir. 2000) ...... 10 24 Application of the United States for Relief, 25 427 F.2d 639 (9th Cir. 1970) ...... 11 26 United States v. Balsys, 27 524 U.S. 666 (1998)...... 32 28 iv Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 7 of 43 Page ID #:2100 83
1 TABLE OF AUTHORITIES (CONTINUED) 2 DESCRIPTION PAGE 3 United States v. Burr, 4 25 F. Cas. 38 (C.C. Va. 1807) ...... 20 5 United States v. Craft, 6 535 U.S. 274 (2002)...... 8, 9 7 United States v. Elcom Ltd., 8 203 F. Supp. 2d 1111 (N.D. Cal. 2002) ...... 32 9 United States v. Fricosu, 10 841 F. Supp. 2d 1232 (D. Colo. 2012) ...... 14, 20 11 United States v. Hall, 12 583 F. Supp. 717 (E.D. Va. 1984) ...... 14 13 United States v. Illinois Bell Tel. Co., 14 531 F.2d 809 (7th Cir. 1976) ...... 5 15 United States v. Koyomejian, 16 970 F.2d 536 (9th Cir. 1992) ...... 11 17 United States v. New York Telephone Co., 18 434 U.S. 159 (1977)...... passim 19 United States v. Nixon, 20 418 U.S. 683 (1974)...... 17 21 United States v. R. Enterprises, Inc., 22 498 U.S. 292 (1991)...... 17 23 United States v. Sindel, 24 53 F.3d 874 (8th Cir. 1995) ...... 33 25 Univ. of Pennsylvania v. E.E.O.C., 26 493 U.S. 182 (1990)...... 23 27 Universal City Studios, Inc. v. Corley, 28 273 F.3d 429 (2d Cir. 2001) ...... 32 v Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 8 of 43 Page ID #:2101 84
1 TABLE OF AUTHORITIES (CONTINUED) 2 DESCRIPTION PAGE 3 Washington v. Glucksberg, 4 521 U.S. 702 (1997)...... 35 5 West Virginia Bd. of Ed. v. Barnette, 6 319 U.S. 624 (1943)...... 31 7 Zivotofsky ex rel. Zivotofsky v. Clinton, 8 132 S. Ct. 1421 (2012) ...... 7, 8 9 Zurcher v. Stanford Daily, 10 436 U.S. 547 (1978)...... 31 11 Federal Statutes 12 18 U.S.C. §§ 3141-45...... 10 13 28 U.S.C. § 1291 ...... 10 14 28 U.S.C. § 1651 ...... 3 15 28 U.S.C. §§ 2241-55...... 10 16 47 U.S.C. § 1002 ...... 11, 12 17 47 U.S.C. § 1005 ...... 12 18 48 U.SC. § 1613a ...... 10 19 Pub. L. 80-773, ch. 646, 62 Stat. 944 (June 25, 1948) ...... 4 20 Federal Rules 21 Federal Rule of Criminal Procedure 41 ...... 5, 8 22 Federal Rule of Civil Procedure 26 ...... 19 23 Other Authorities 24 In the Matter of Commc’ns Assistance for Law Enforcement Act 25 & Broadband Access & Servs., 20 F.C.C. Rcd. 14989 (2005) ...... 12 26 H.R. Rep. No. 308, 80th Cong., 1st Sess., A46 (1947) ...... 4 27 Brief for Respondent, United States v. New York Telephone Co., 28 No. 76-835, 1977 WL 189311 (Apr. 18, 1977) ...... 23 vi Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 9 of 43 Page ID #:2102 85
1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 As Apple Inc. concedes in its Opposition, it is fully capable of complying with the 4 Court’s Order. By Apple’s own reckoning, the corporation—which grosses hundreds of 5 billions of dollars a year—would need to set aside as few as six of its 100,000 employees 6 for perhaps as little as two weeks. This burden, which is not unreasonable, is the direct 7 result of Apple’s deliberate marketing decision to engineer its products so that the 8 government cannot search them, even with a warrant. Thus, the lawful warrant in this 9 case—issued by a neutral magistrate upon a finding of probable cause, pursuant to the 10 procedure blessed by the Supreme Court just two years ago in Riley v. California, 134 S. 11 Ct. 2473 (2014)—will be frustrated unless Apple complies with the Order. In passing 12 the All Writs Act, Congress gave courts a means of ensuring that their lawful warrants 13 were not thwarted by third parties like Apple. 14 The Court’s Order is modest. It applies to a single iPhone, and it allows Apple to 15 decide the least burdensome means of complying. As Apple well knows, the Order does 16 not compel it to unlock other iPhones or to give the government a universal “master key” 17 or “back door.” It is a narrow, targeted order that will produce a narrow, targeted piece 18 of software capable of running on just one iPhone, in the security of Apple’s corporate 19 headquarters. That iPhone belongs to the County of San Bernardino, which has 20 consented to its being searched. The phone was used by the now-dead terrorist Syed 21 Rizwan Farook, who also consented to its being searched as part of his employment 22 agreement with the County. In short, the Order invades no one’s privacy and raises no 23 Fourth Amendment concerns. 24 The government and the community need to know what is on the terrorist’s phone, 25 and the government needs Apple’s assistance to find out. For that reason, the Court 26 properly ordered Apple to disable the warrant-proof barriers it designed. Instead of 27 complying, Apple attacked the All Writs Act as archaic, the Court’s Order as leading to a 28 “police state,” and the FBI’s investigation as shoddy, while extolling itself as the primary
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1 guardian of Americans’ privacy. (See Wilkison Decl. Ex. 1.) Apple’s rhetoric is not 2 only false, but also corrosive of the very institutions that are best able to safeguard our 3 liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and 4 venerable laws, and the democratically elected branches of government. 5 Congress intended the All Writs Act to flexibly meet “new problems” like those 6 devised by Apple. As the Supreme Court held, the Act supplies a basis for a court to 7 order a third-party corporation to assist in gathering evidence. As the Ninth Circuit held, 8 that precedent permits a court to order a corporation to program a computer, even if the 9 corporation objects that doing so will cost it money, divert its technicians, and annoy its 10 customers. That controlling precedent and the All Writs Act—not Apple’s technological 11 fiat—should determine whether Farook’s iPhone will be searched. 12 Apple and its amici try to alarm this Court with issues of network security, 13 encryption, back doors, and privacy, invoking larger debates before Congress and in the 14 news media. That is a diversion. Apple desperately wants—desperately needs—this 15 case not to be “about one isolated iPhone.” But there is probable cause to believe there 16 is evidence of a terrorist attack on that phone, and our legal system gives this Court the 17 authority to see that it can be searched pursuant to a lawful warrant. And under the 18 compelling circumstances here, the Court should exercise that authority, even if Apple 19 would rather its products be warrant-proof. 20 This case—like the three-factor Supreme Court test on which it must be decided— 21 is about specific facts, not broad generalities. Here, Apple deliberately raised 22 technological barriers that now stand between a lawful warrant and an iPhone containing 23 evidence related to the terrorist mass murder of 14 Americans. Apple alone can remove 24 those barriers so that the FBI can search the phone, and it can do so without undue 25 burden. Under those specific circumstances, Apple can be compelled to give aid. That 26 is not lawless tyranny. Rather, it is ordered liberty vindicating the rule of law. This 27 Court can, and should, stand by the Order. Apple can, and should, comply with it. 28 2 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 11 of 43 Page ID #:2104 87
1 II. ARGUMENT 2 A. The All Writs Act Is an Integral Part of Our Justice System 3 In both its Opposition and its public statements, Apple seeks to characterize the 4 All Writs Act (“AWA” or “Act”), codified at 28 U.S.C. § 1651, as an obscure law 5 dredged up by the government to achieve unprecedented power. That premise is false. 6 The Act is a vital part of our legal system that is regularly invoked in a variety of 7 contexts. Congress intended for the Act to be broad and flexible, capable of rising to 8 meet new obstacles to the courts’ lawful exercise of jurisdiction. The Act is not a 9 judicial usurpation of congressional power, but rather an example of Congress’s reliance 10 upon the courts’ sound discretion and close familiarity with specific facts to ensure that 11 justice is done. 12 The AWA is indeed venerable. It was enacted by the First Congress at “the very 13 beginning of this Nation” as part of the Judiciary Act of 1789. See Levine v. United 14 States, 362 U.S. 610, 615 (1960). The Act codified basic judicial powers critical to 15 justice and the legal system, such as the power to issue writs of habeas corpus and 16 mandamus. Like other foundational laws, it was framed not in a hypertechnical way to 17 address the passing needs of 1789, but in broad, enduring terms that bestowed on the 18 courts the “power to issue . . . all . . . writs . . . which may be necessary for the exercise 19 of their respective jurisdictions, and agreeable to principles and usages of law.” 20 The Supreme Court quickly recognized that “[t]o limit the operation of [the Act] 21 now, to that which it would have had in the year 1789, would open a door to many and 22 great inconveniencies, which Congress seems to have foreseen, and to have guarded 23 against, by giving ample powers to the Courts, so to mold their process, as to meet 24 whatever changes might take place.” Bank of U.S. v. Halstead, 23 U.S. (10 Wheat.) 51, 25 62 (1825) (interpreting the phrase “agreeable to the usages and principles of law” to be a 26 broad grant of power to the federal courts) (emphasis in original). 27 In the centuries since, the Act has never fallen into disuse or disrepute. Indeed, 28 few laws are more vital. As the Supreme Court has explained: 3 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 12 of 43 Page ID #:2105 88
1 [T]he writ must be agreeable to the usages and principles of “law,” a term which is unlimited by the common law or the English law. And since “law” 2 is not a static concept, but expands and develops as new problems arise, we 3 do not believe that the forms of [writs] authorized by [the AWA] are only those recognized in this country in 1789, when the original Judiciary Act 4 containing the substance of this section came into existence. In short, we do 5 not read [the AWA] as an ossification of the practice and procedure of more than a century and a half ago. Rather it is a legislatively approved source of 6 procedural instruments designed to achieve “the rational ends of law.” 7
8 Price v. Johnston, 334 U.S. 266, 282-85 (1948) (discussing the scope of the writ of 9 habeas corpus under the AWA), overruled on other grounds by McCleskey v. Zant, 499 10 U.S. 467 (1991). Price further held that because “justice may on occasion require the 11 use of a variation or a modification” of the writ, and because Congress had chosen to 12 provide broad powers in the AWA, “it follows that we should not write in limitations 13 which Congress did not see fit to make.” Id. Just months after the Supreme Court 14 decided Price, Congress responded not by chastening the Court or restricting the AWA, 15 but by “extend[ing]” it: first, courts could now issue not just “necessary” writs but also 16 “appropriate” writs; second, “all” courts, not just certain enumerated ones, would be 17 empowered by the Act. See 80 Pub. L. 80-773, ch. 646, 62 Stat. 944 (June 25, 1948); 18 H.R. Rep. No. 308, 80th Cong., 1st Sess., A46 (1947) (noting the “revised section 19 extends the power to issue writs in aid of jurisdiction”). 20 Apple portrays the AWA as dusty and forgotten so that application of the Act here 21 might seem an unprecedented and congressionally unforeseen assumption of judicial 22 power. This mischaracterization of the Act was rejected by the Supreme Court in United 23 States v. New York Telephone Co., 434 U.S. 159 (1977), which held that the AWA is 24 properly used to compel a telecommunications company to supply personnel and 25 equipment to support a government investigation by installing a pen register. The 26 Court’s conclusion was expressly based on Price’s holding that the AWA must be 27 “fluid” and evolving, id. at 173, thus foreclosing Apple’s current effort to confine New 28 York Telephone to only pen registers. 4 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 13 of 43 Page ID #:2106 89
1 In deciding New York Telephone, the Supreme Court directly confronted and 2 expressly rejected the policy arguments Apple raises now. Like Apple, the telephone 3 company argued: that Congress had not given courts the power to issue such an order in 4 its prior legislation; that the AWA could not be read so broadly; that it was for Congress 5 to decide whether to provide such authority; and that relying on the AWA was a 6 dangerous step down a slippery slope ending in arbitrary police powers. See In re Order 7 Authorizing the Use of a Pen Register, 538 F.2d 956, 962-63 (2d Cir. 1976) (reversed); 8 New York Telephone, 434 U.S. at 179 (Stevens, J., dissenting). The Court dismissed 9 these arguments in light of Price. See New York Telephone, 434 U.S. at 173-75 & n.23 10 (maj. op.). In the forty years since that decision, it has become clear that the Court was 11 correct because those fears have proved unfounded. 12 The Supreme Court’s approach to the AWA does not create an unlimited source of 13 judicial power, as Apple contends. The Act is self-limiting because it can only be 14 invoked in aid of a court’s jurisdiction. Here, that jurisdiction rests on a lawful warrant, 15 issued by a neutral magistrate pursuant to Rule 41. And New York Telephone provides a 16 further safeguard, not through bright-line rules but rather through three factors courts 17 must consider before exercising their discretion: (1) how far removed a party is from the 18 investigative need; (2) how unreasonable a burden would be placed on that party; and (3) 19 how necessary the party’s assistance is to the government. This three-factor analysis 20 respects Congress’s mandate that the Act be flexible and adaptable, while eliminating the 21 concern that random citizens will be forcibly deputized. 22 Technology is constantly advancing, but these advances have never required the 23 AWA to retreat. To the contrary, as the Supreme Court made clear in Halstead and 24 Price, the Act must grow and develop to keep pace with “whatever changes might take 25 place.” Courts used that “common sense” in applying the Act to programming and 26 electronic data in the trap-and-trace context. See Michigan Bell Tel. Co. v. United States, 27 565 F.2d 385, 389 (6th Cir. 1977); United States v. Illinois Bell Tel. Co., 531 F.2d 809, 28 5 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 14 of 43 Page ID #:2107 90
1 813 (7th Cir. 1976). And this Court applied the same common sense in issuing the 2 Order. The AWA is a proper source of this Court’s authority. 3 B. Through the All Writs Act, Congress Has Empowered the Court to Decide the Fact-Specific Matter Before It 4 5 1. This Case Must Be Decided on Its Facts 6 The Order applies to a single device and is based on the specific facts before this 7 Court. Those compelling facts justify ordering Apple to remove the barriers to executing 8 a warrant for an iPhone used by a terrorist who carried out a mass murder. Apple 9 demands that the Court should instead address the broad questions whether Apple should 10 be required to unlock every iPhone in every instance, or whether Apple should be 11 required to give the government the means to do so. Those questions are not before this 12 Court. Indeed, if Apple’s compliance with the AWA in a single case were sufficient to 13 require it to comply in all cases, there would be no dispute here: Apple routinely 14 complied with AWA orders in the past. (See infra p. 27.) In the same respect, future 15 cases involving other iPhones will be decided on their specific facts. 16 The “case or controversy” before the Court is narrow and specific, as well it 17 should be. “[T]he very strength of our common law” is “its cautious advance and retreat 18 a few steps at a time.” Benjamin Cardozo, The Growth of the Law 6 (1924). It is 19 precisely the rich facts of a particular case that provide the basis for a court to resolve it, 20 and these same facts ensure that the law’s growth is incremental and thoughtful. That is 21 why courts resolve cases and controversies that are “definite and concrete, not 22 hypothetical or abstract.” Railway Mail Assn. v. Corsi, 326 U.S. 88, 93 (1945). 23 Only by stripping this case of its “definite and concrete” facts—the very facts that 24 guide the AWA inquiry—and by recasting the case as a “hypothetical or abstract” policy 25 debate can Apple invoke separation of powers and the political-question doctrine. (Opp. 26 18-19.) Apple urges the Court to focus on broader policy issues, and then proclaims that 27 the Court is forbidden to resolve them. But the actual issue before this Court—whether 28 Apple can be directed under the AWA to provide specific technical assistance—is not a 6 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 15 of 43 Page ID #:2108 91
1 judicially imponderable question forbidden by separation of powers: courts resolve such 2 questions regularly, as in New York Telephone and In re Application of United States for 3 an Order Authorizing an In-Progress Trace of Wire Commc’ns over Tel. Facilities 4 (“Mountain Bell”), 616 F.2d 1122, 1126-29 (9th Cir. 1980). Nor must courts flee from 5 cases involving policy and privacy considerations related to searching smartphones. 6 Less than two years ago, the Supreme Court confronted just such issues in Riley v. 7 California. The Court, after carefully considering smartphones’ technology and their 8 role in society, held that an “appropriate balance” between privacy concerns and 9 investigative needs was struck by the government’s obtaining a search warrant. 134 S. 10 Ct. at 2484. The Court added that its “holding, of course, is not that the information on a 11 cell phone is immune from search; it is instead that a warrant is generally required before 12 such a search.” Id. at 2493. Thus, Apple’s privacy questions, far from being 13 unanswerable by any court, have already been answered by the Supreme Court, and the 14 government complied with Riley by obtaining a warrant here. 15 This case also does not present a “political question,” as suggested by Apple. The 16 ongoing debate regarding law enforcement, national security needs, and privacy does not 17 deprive this Court of authority to issue the Order. In fact, Apple’s argument is undone 18 by the very authority it cites: Diamond v. Chakrabarty, 447 U.S. 303 (1980). (Opp. 19.) 19 Far from refusing to decide a case because of the policy implications before it, the 20 Supreme Court explained that the “grave risks” and “parade of horribles” conjured up by 21 the petitioner and his amici needed to be presented to Congress, while the Court would 22 decide the case instead by applying the broad terms Congress used in 1930 Patent Act. 23 Id. at 316-18. As Diamond shows, the political-question doctrine is a “narrow 24 exception” to the general rule that “the Judiciary has a responsibility to decide cases 25 properly before it.” Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 26 (2012). It applies not in every case raising policy considerations but only in cases that 27 raise nothing but policy considerations, cases where there is “a lack of judicially 28 7 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 16 of 43 Page ID #:2109 92
1 discoverable and manageable standards for resolving” the issue.1 Baker v. Carr, 369 2 U.S. 186, 217 (1962). Here, as in Diamond, the AWA standards already have been 3 “judicially discover[ed]” and have proven “manageable” for decades—indeed, for 4 centuries. The advent of iOS 9 does not alter the authority of the AWA or require this 5 Court to abstain, nor do public and political interest in this case. 6 2. Congressional Inaction Does Not Preclude an AWA Order 7 As the Supreme Court has made clear, Congress’s broad grant of judicial authority 8 under the AWA was designed to avoid the need for more specific, piecemeal legislation. 9 A lack of more specific legislation is thus no barrier to the Order. Apple insists that this 10 Court lost its power under the AWA because the executive branch chose not to propose 11 amendments to CALEA, and because Congress might someday pass other legislation. 12 (Opp. 8-10.) But the Supreme Court has repeatedly made clear “that failed legislative 13 proposals are a particularly dangerous ground on which to rest an interpretation of a 14 prior statute, reasoning that congressional inaction lacks persuasive significance because 15 several equally tenable inferences may be drawn from such inaction, including the 16 inference that the existing legislation already incorporated the offered change.” United 17 States v. Craft, 535 U.S. 274, 287 (2002). 18 Until very recently, there was widespread agreement that the AWA sufficed in this 19 area. As Apple itself has acknowledged, “it seemed that this had been somewhat settled 20 views and settled authority from multiple judges.” (Hanna Decl. Ex. DD at 56.) Indeed, 21 Apple has conceded that the recent decision of a Magistrate Judge in the Eastern District 22 of New York “mark[ed] the first time a judge has questioned the authority of the All 23 Writs Act to grant supplemental orders to accompany . . . warrants” to search iPhones.
24 1 A case can also be irresoluble in the rare event that “there is a textually 25 demonstrable constitutional commitment of the issue to a coordinate political department.” Zivotofsky, 132 S. Ct. at 1427. But no such commitment exists here. The 26 issuance of writs is a traditional part of the courts’ authority. See Halstead, 23 U.S. at 61-62. The AWA exists to further a court’s jurisdiction. Congress has indisputably 27 given this Court jurisdiction to issue search warrants through Rule 41(b), and power to 28 issue writs in furtherance of those warrants through the AWA. 8 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 17 of 43 Page ID #:2110 93
1 (Wilkison Decl. Ex. 16 at 3; see Exhibit A to Apple’s Notice of Supplemental Authority 2 (“New York Order”).) Thus, there is—at a minimum—an “equally tenable inferenc[e]” 3 that “existing legislation already incorporated” the power to order Apple to assist in 4 executing search warrants. Craft, 535 U.S. at 287. That inference is all the more 5 powerful because there was never even a “failed legislative proposal” of a “CALEA II” 6 bill (Opp. 9), merely vague discussions about potential legislation that would have 7 placed broader obligations, not at issue here, on some communications service providers. 8 The Supreme Court has emphasized the prohibition on drawing meaning from 9 congressional silence in the AWA context. In F.T.C. v. Dean Foods Co., 384 U.S. 597, 10 600 (1966), a circuit court dissolved an FTC restraining order on the ground that, in two 11 different Congresses, “bills sponsored by the said Commission were introduced, which 12 bills if enacted into law would have conferred upon the Commission such authority as it 13 is attempting to exercise in the case now before this court.” The Supreme Court 14 reversed, reaffirming two key principles: (1) congressional inaction, past or future, is 15 uninstructive; and (2) because the AWA creates power absent congressional legislation, 16 there is no need for Congress to specifically confer it. “Congress neither enacted nor 17 rejected these proposals; it simply did not act on them. Even if it had, the legislation as 18 proposed would have had no affect whatever on the power that Congress granted the 19 courts by the All Writs Act. We cannot infer from the fact that Congress took no action 20 at all . . . an intent to circumscribe traditional judicial remedies.” Id. at 609. That 21 holding was echoed in New York Telephone, which made clear that the AWA empowers 22 a court to act “unless appropriately confined by Congress.” 434 U.S. at 172-73.2
23 2 In a recent and first-of-its-kind ruling, the New York Order—without addressing Dean Foods—held that interpreting the AWA to empower courts absent specific 24 congressional authorization would violate separation-of-powers principles by bestowing legislative functions on the courts. (New York Order 21-30.) The government has 25 sought review from the district court overseeing that matter, and the order has no precedential value here. Moreover, its reasoning suffers from fatal flaws. First, this 26 argument was expressly rejected in Halstead, 23 U.S. at 61-62 (stating that Congress’s check on abusive writs by federal courts is for it to “correct the evil by more specific 27 legislation” rather than having Congress specifically authorize each exercise of the 28 court’s authority), and was raised by the dissent in New York Telephone, in 434 U.S. at (footnote cont’d on next page) 9 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 18 of 43 Page ID #:2111 94
1 In short, the AWA does not require any additional legislation to empower the 2 courts. Rather, as Dean Foods and New York Telephone held, the courts retain the 3 flexible power bestowed by Congress through the AWA unless Congress expressly takes 4 it away. As explained below, Congress has not enacted legislation that specifically 5 confines the courts’ power here. Its silence says nothing. 6 3. CALEA Does Not Forbid the Order 7 Contrary to Apple’s claims (Opp. 16-19), CALEA did not deprive this Court of its 8 power to issue the Order. Congress’s intent in passing CALEA was not to weaken 9 existing judicial powers under the AWA, but to “preserve the status quo” regarding the 10 lawful interception of transmissions. U.S. Telecom Ass’n v. F.C.C., 227 F.3d 450, 455 11 (D.C. Cir. 2000). The statute does not address the particular issue before this Court. 12 As explained above, the AWA “is controlling” unless “a statute specifically 13 addresses the particular issue at hand.” Pennsylvania Bureau of Correction v. U.S. 14 Marshals Serv., 474 U.S. 34, 43 (1985) (emphases added). Put otherwise, it is not
15 179 & n.1 (arguing, for example, that, in light of the limits of Title III, any application of 16 the AWA to pen registers “must await congressional deliberation”), and rejected by the majority, id. at 175 n.23 (maj. op.). 17 Second, the AWA codified the courts’ pre-existing, common-law power to issue writs to enforce the courts’ jurisdiction. Thus, the idea that judges would continue to 18 determine the scope of these writs would neither surprise nor frighten the Framers. See also Price, 334 U.S. at 282-85. That power is not “legislative” in a historical or modern 19 sense. See Halstead, 23 U.S. at 61-62 (“It is said, however, that this is the exercise of legislative power, which could not be delegated by Congress to the Courts of justice. 20 But this objection cannot be sustained.”). Third, the New York Order is too narrowly focused on the AWA in the context of 21 evidence gathering. The AWA also codifies, for example, the writs of mandamus and coram nobis. In both of these areas (appellate jurisdiction and post-conviction relief), 22 there is extensive congressional legislation setting forth clear limits on the courts’ power, defining not only what they may do but also when they may do it. Regarding appellate 23 jurisdiction, Congress has enacted, at a minimum, 28 U.S.C. §§ 1291, 1292, 1295, 2255; 18 U.S.C. §§ 3141-45, 3731, 3742; and 48 U.SC. § 1613a. Nevertheless, pursuant to the 24 AWA, the courts maintain the power to hear any appeal, at any time, provided there is a “clear abuse of discretion” by the district court. Bankers Life & Casualty Co v. Holland, 25 346 U.S. 379 (1953). Similarly, Congress has aggressively legislated in the area of post- conviction relief, first in the Judiciary Act of 1948 and then in the Anti-Terrorism and 26 Effective Death Penalty Act. See 28 U.S.C. §§ 2241-55. And yet, pursuant to the AWA, the courts maintain the power to grant relief through the writ of coram nobis. See 27 Carrington v. United States, 503 F.3d 888, 890 (9th Cir. 2007), opinion amended on 28 denial of reh’g, 530 F.3d 1183 (9th Cir. 2008). 10 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 19 of 43 Page ID #:2112 95
1 enough for other laws to brush up against similar issues. Rather, Congress must legislate 2 so “intricately” as to leave “no gap to fill.” The Company v. United States, 349 F.3d 3 1132, 1145 n.26 (9th Cir. 2003). A rare instance of a court finding such pervasive 4 legislation is Application of the United States for Relief, 427 F.2d 639 (9th Cir. 1970), in 5 which the Ninth Circuit held that Title III occupied the field of intercepted wire 6 communications and precluded use of the AWA to compel a telephone company’s 7 assistance. But both Congress and the Supreme Court concluded that the Ninth Circuit’s 8 decision was wrong. See New York Telephone, 434 U.S. at 178 n.25. Moreover, the 9 Supreme Court held that Title III had no effect on the exercise of the AWA in the 10 adjacent area of pen registers, id. at 166, rejecting the dissent’s arguments to the 11 contrary, id. at 179 n.1 (Stevens, J., dissenting). 12 CALEA, passed in 1994, does not “meticulously,” “intricately,” or “specifically” 13 address when a court may order a smartphone manufacturer to remove barriers to 14 accessing stored data on a particular smartphone. Rather, it governs what steps 15 telecommunications carriers involved in transmission and switching must take in 16 advance of court orders to ensure their systems can isolate information to allow for the 17 real-time interception of network communications. 47 U.S.C. § 1002(a)(1)-(4); see Am. 18 Council on Educ. v. F.C.C., 451 F.3d 226, 227-28 (D.C. Cir. 2006). As the Ninth Circuit 19 has recognized, regulation in a distinct area of law should not “curtail the government’s 20 powers in domestic law enforcement” under the AWA. United States v. Koyomejian, 21 970 F.2d 536, 542 (9th Cir. 1992) (en banc). CALEA thus does not confine the Court’s 22 power under the AWA here. 23 Apple points to a section in CALEA stating that “this subchapter does not 24 authorize any law enforcement agency . . . to require any specific design of equipment, 25 facilities, services, features, or system configurations to be adopted by any provider of a 26 wire or electronic communication service, any manufacturer of telecommunications 27 equipment, or any provider of telecommunications support services.” (Opp. 16); 47 28 U.S.C. § 1002(b)(1)(A), (B). Congress’s wording here is clear and deliberate. The 11 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 20 of 43 Page ID #:2113 96
1 provision does not destroy any existing authority—or even speak to courts’ power at all. 2 Nor does the provision have any effect outside of CALEA itself: it limits only the 3 authority given to “law enforcement agenc[ies]” by “this subchapter.” The purpose of 4 the provision is not to impliedly deprive the courts of power under the AWA, but to 5 clarify that the preceding subsection of CALEA, 47 U.S.C. § 1002(a), does not permit 6 law enforcement to dictate the “specific design” of the listed items. 7 To apply that limitation to the Court’s Order would defy both the statutory 8 language and Supreme Court precedent for four reasons: (1) the Order rests not on 9 CALEA, but on the AWA; (2) the Order is an exercise of judicial, not agency authority; 10 (3) the Order does not dictate “any specific design”; and (4) the Order is not directed at 11 an item or service provider listed in § 1002(b)(1)(A), (B).3 Accordingly, this limitation 12 within CALEA does not restrict the Court’s authority under the AWA, let alone dictate 13 the result in this case. 14 C. The Order Is Proper Under New York Telephone and the AWA 15 This Court had authority to issue the Order pursuant to the AWA, and Apple has 16 demonstrated no discretionary reason to withdraw it. As Apple recognizes, this Court 17 must consider three equitable factors: (1) how “far removed” Apple is “from the 18 underlying controversy”; (2) how “unreasonable [a] burden” the Order would place on 19 Apple; and (3) how “necessary” its assistance is to searching Farook’s iPhone.4 See New
20 3 With regard to the development and control of iOS, Apple is not a provider of wire or electronic communication services but a software developer and licensor. While 21 Apple may be a provider of electronic communication services in its capacity as provider of FaceTime and iMessage, the Court’s order does not bear at all upon the operation of 22 those programs on Farook’s iPhone, let alone generally. See In the Matter of Commc’ns Assistance for Law Enforcement Act & Broadband Access & Servs. 20 F.C.C. Rcd. 23 14989, at ¶ 21 (2005) (recognizing that an entity could provide multiple kinds of services, and holding that the CALEA analysis must be performed on individual 24 components, not the entity as a whole). Nor is Apple an “equipment manufacturer” as that term is used in CALEA. In CALEA, that term refers to a “manufacturer[] of [] 25 telecommunications transmissions and switching equipment,” see 47 U.S.C. § 1005— carrier-level equipment, not end-user phones. 26 4 The New York Order wrongly posited that there were actually two three-part 27 tests: the New York Telephone test discussed here, and a statutory one based on the 28 AWA’s text. The New York Order cited in support of its statutory test only cases which (footnote cont’d on next page) 12 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 21 of 43 Page ID #:2114 97
1 York Telephone, 434 U.S. at 172-75. This test appropriately guides a court’s discretion 2 to ensure that the Act does not lead down the slippery slope Apple and amici imagine. 3 Here, the factors support the Court’s Order. 4 1. Apple Is Closely Connected to the Underlying Controversy 5 Apple is not so far removed from the underlying controversy that it should be 6 excused from assisting in the execution of the search warrant. In New York Telephone, 7 the phone company was sufficiently close to the controversy because the criminals used 8 its phone lines. See 434 U.S. at 174. The Court did not require that the phone company 9 know criminals were using its phone lines, or that it be involved in the crime. See id. 10 Here, as a neutral magistrate found, there is probable cause to believe that Farook’s 11 iPhone contains evidence related to his crimes. That alone would be sufficient proximity 12 under the AWA and New York Telephone, even if Apple did not also own and control the 13 software on Farook’s iPhone. 14 Apple attempts to distinguish itself from New York Telephone and companies that 15 have been compelled to provide technical assistance by claiming that (1) it is “unlike a 16 telecommunications monopoly” and (2) it has “merely . . . placed a good into the stream 17 of commerce,” as if Apple surrenders control over its iPhones upon selling them. (Opp. 18 21.) These distinctions fail on both the facts and the law. 19 To begin with, courts have already issued AWA orders to “manufacturer[s] [such 20 as Apple] to attempt to unlock . . . cellphone[s] so that . . . warrant[s] may be executed.” 21 See, e.g., In re XXX Inc., 2014 WL 5510865, at *1-*3 (S.D.N.Y. 2014); United States v. 22 Blake, No. 13-CR-80054, ECF No. 207 at 5 (S.D. Fl. July 14, 2014). These orders show 23 there is no bright-line rule that a third party must be a public utility to fall within the
24 predate New York Telephone. (New York Order at 11.) In fact, the New York Telephone 25 test was meant as a specific application of the general AWA standards, supplanting any previous statutory tests. The Supreme Court has articulated a similar context-specific 26 three-factor test for the writ of mandamus which supplants any need to create a statutory test. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004). The New York 27 Order’s approach disregards not just New York Telephone, but also Halstead’s 28 interpretation of “usages and principles of law.” 13 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 22 of 43 Page ID #:2115 98
1 Act’s reach. So do other cases. See, e.g., New York Telephone, 434 U.S. at 174 2 (collecting examples of individuals compelled via the AWA); United States v. Hall, 583 3 F. Supp. 717, 722 (E.D. Va. 1984) (credit card company); In re Access to Videotapes, 4 2003 WL 22053105, at *3 (D. Md. 2003) (landlord); United States v. Fricosu, 841 F. 5 Supp. 2d 1232, 1235 (D. Colo. 2012) (individual). Regardless, Apple’s size, technology, 6 and ubiquity make it akin to the companies in New York Telephone and Mountain Bell. 7 Moreover, Apple maintains a continued connection to its phones well beyond their 8 sale, and has deliberately developed its phones so that Apple alone holds the means for 9 courts’ search warrants to be carried out. As Apple’s business model and its 10 representations to its investors and customers make clear, Apple intentionally and for 11 commercial advantage retains exclusive control over the software that can be used on 12 iPhones, giving it monopoly-like control over the means of distributing software to the 13 phones. As detailed below, Apple does so by: (1) firmly controlling iPhones’ operating 14 systems and first-party software; (2) carefully managing and vetting third-party software 15 before authenticating it for use on iPhones; and (3) continually receiving information 16 from devices running its licensed software and its proprietary services, and retaining 17 continued access to data from those devices about how its customers are using them. 18 Having established suzerainty over its users’ phones—and control over the precise 19 features of the phones necessary for unlocking them—Apple cannot now pretend to be a 20 bystander, watching this investigation from afar. 21 First, Apple develops its own operating system, and “is unique in that it designs 22 and develops nearly the entire solution for its products, including the hardware, 23 operating system, numerous software applications and related services.” (Wilkison Decl. 24 Ex. 2 at 8 (Apple 10-K) (emphases added).) Apple’s “business strategy leverages its 25 unique ability to design and develop its own operating systems, hardware, application 26 software and services.” (Id. at 1.) “The tight integration of hardware and software on 27 iOS devices ensures that each component of the system is trusted, and validates the 28 14 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 23 of 43 Page ID #:2116 99
1 system as a whole.” (Hanna Decl. Ex. K at 5 (describing how each step is analyzed and 2 vetted “[f]rom initial boot-up to iOS software updates to third-party apps”).) 3 Second, and pivotally, Apple’s devices will not run software that is not 4 electronically “signed” by Apple. (Id. at 6 (“only Apple-signed code can be installed on 5 a device”); Hanna Decl. Ex. DD at 64 (“We agree with the government that the system 6 requires Apple authentication.”).) Through its exclusive control of its electronic 7 signature, Apple carefully manages and vets both the software updates and all third-party 8 programs (“apps”) that can be used on its devices. This keeps Apple close to its phones 9 long after they are sold. As set forth in its licensing agreement, Apple will—if allowed 10 by the user—periodically check with its devices to send signed updates, and will 11 “automatically download and install [them] onto [the] device[s].” (Wilkison Decl. Ex. 3 12 at ¶ 2(h).) Apple also permits only two kinds of apps to be loaded onto iOS devices 13 through Apple’s App Store: those “developed . . . by Apple” and those “developed . . . 14 by a third party developer.” (Wilkison Decl. Ex. 4 at 15.) Apple exercises power over 15 both, because they must be signed by Apple. (Hanna Decl. Ex. K at 18; see also Perino 16 Decl. Ex. 30 at 1 (“Before your app can integrate app services, be installed on a device, 17 or be submitted to the App Store, it must be signed with a certificate issued by Apple.”).) 18 Third, Apple maintains a connection with its phones after sale by continuing to 19 receive information from the devices and continuing to access data about how its 20 customers are using their phones. Indeed, Apple requires its users to consent to Apple’s 21 continued use of data: “When you use your device, your phone number and certain 22 unique identifiers for your iOS Device are sent to Apple in order to allow others to reach 23 you by your phone number when using various communication features of the iOS 24 Software, such as iMessage and FaceTime. . . . Other iOS Software features may require 25 information from your iOS Device.” (Wilkison Decl. Ex. 3 at ¶ 4.) Apple similarly 26 expects its customers to consent to its continual monitoring of information in order to get 27 28 15 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 24 of 43 Page ID #:2117 100
1 and use certain apps and services.5 Apple’s connection to its iPhones is not abstract: at a 2 minimum, Apple was communicating with Farook’s iPhone as late as October 2015, 3 when it last backed up some of the phone’s data on its iCloud server. (Pluhar Decl. ¶ 8.) 4 Thus, by its own design, Apple remains close to its iPhones through careful 5 management and constant vigil over what software is on an iPhone and how that 6 software is used. Indeed, Apple is much less “removed from the controversy”—in this 7 case, the government’s inability to search Farook’s iPhone—than was the New York 8 Telephone company because that company did not deliberately place its phone lines to 9 prevent inconspicuous government access. 434 U.S. at 161-62. Here, Apple has 10 deliberately used its control over its software to block law-enforcement requests for 11 access to the contents of its devices, and it has advertised that feature to sell its products. 12 As Apple put it: “Unlike our competitors, Apple cannot bypass your passcode and 13 therefore cannot access this data. So it’s not technically feasible for us to respond to 14 government warrants for the extraction of this data from devices in their possession 15 running iOS 8.”6 (Wilkison Decl. Ex. 5 at 2.) 16 In short, Apple is not some distant, disconnected third party unexpectedly and 17 arbitrarily dragooned into helping solve a problem for which it bears no responsibility. 18 Rather, Apple is intimately close to the barriers on Farook’s locked iPhone because 19 Apple specifically designed the iPhone to create those barriers. 20
21 5 (See, e.g., Wilkison Decl. Ex. 4 at 5 (providing that on any device, iOS or not, 22 that uses iTunes Match, Apple “automatically scans the song files and collects other information . . . to identify media in your iTunes library,” and “Apple will log 23 information such as the tracks you play, stop or skip, the devices you use, and the time and duration of playback”); id. at 22 (same for iCloud Music Library); id. at 5-6 24 (providing Apple’s Genius service will “automatically collect information . . . such as your play history and playlists”); id. at 16 (“When you opt in to Popular Near Me via 25 enabling Location Services, Apple will . . . automatically collect information related to certain of your App Store Products, such as your time spent with each App Store Product 26 and the number of times each App Store Product is launched.”).)
27 6 Apple later modified this language: “Apple will not perform iOS data extractions 28 in response to government search warrants.” (Hanna Decl. Ex. AA at 2.) 16 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 25 of 43 Page ID #:2118 101
1 2. The Burden Placed on Apple Is Not Undue and Unreasonable 2 In seeking to avoid compliance with this Court’s Order, Apple must show that the 3 burden placed upon it is undue, unreasonable, and noncompensable. See Mountain Bell, 4 616 F.2d at 1122, 1132 (“Appellants did not show that the trace . . . significantly 5 increased the possibility of a malfunction . . . . Nor did appellants prove that the 6 compensation provided for in the Order was in any way inadequate.”); cf. United States 7 v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991) (“Consequently, a grand jury subpoena 8 issued through normal channels is presumed to be reasonable, and the burden of showing 9 unreasonableness must be on the recipient who seeks to avoid compliance.”). Apple has 10 shown none of those things. Neither coding software, nor facing speculative business 11 concerns, nor providing possible future compliance poses an undue burden for Apple. 12 Apple is one of the richest and most tech-savvy companies in the world, and it is 13 more than able to comply with the AWA order. Indeed, it concedes it can do so with 14 relatively little effort. Even this modest burden is largely a result of Apple’s own 15 decision to design and market a nearly warrant-proof phone. In evaluating whether the 16 burden on Apple is undue, this Court can and should recognize the fundamental 17 importance that access to evidence plays in the American system of justice. Given “our 18 historic commitment to the rule of law” and “our view that the twofold aim (of criminal 19 justice) is that guilt shall not escape or innocence suffer,” the Supreme Court has 20 recognized that “[t]he need to develop all relevant facts in the adversary system is both 21 fundamental and comprehensive.” United States v. Nixon, 418 U.S. 683, 708-09 22 (1974). The Court further explained that “[t]he ends of criminal justice would be 23 defeated if judgments were to be founded on a partial or speculative presentation of the 24 facts. The very integrity of the judicial system and public confidence in the system 25 depend on full disclosure of all the facts.” Id. at 709. Apple’s position that it cannot be 26 required to assist with the execution of a warrant for one of its phones flies in the face of 27 these principles and this tradition. 28 17 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 26 of 43 Page ID #:2119 102
1 a. Writing Code Is Not a Per Se Undue Burden 2 Apple’s primary argument regarding undue burden appears to be that it should not 3 be required to write any amount of code to assist the government. Apple insists that “no 4 court has ever held that the AWA permits the government to conscript a private 5 company to build software for it.” (Opp. 31.) Indeed, Apple proclaims that no company 6 has ever been asked via the Act to write even “some amount of code to gather 7 information.” (Opp. 27.) This claim is false. More than 35 years ago, in Mountain 8 Bell—a case binding here but unmentioned in the recent New York Order—the Ninth 9 Circuit confronted and rejected exactly that argument. There, as here, appellant made 10 “[a] great deal” of the burden of coding, 616 F.2d at 1126, but the Circuit demurred. It 11 recognized that the AWA order at issue would need to be “accomplished by 12 programming a control computer to ‘trap’ incoming calls to the designated telephone 13 number. Computers that route the incoming calls from the exchange in which they 14 originate[d] from the dialing telephone [were] programmed. In this case twelve 15 computers were programmed, including those in the Phoenix metropolitan area.” Id. at 16 1127 (emphases added). Further, this additional programming caused the phone 17 company’s computers to operate much less efficiently. Id. Nevertheless, the Circuit 18 held that the lower court “had the power to compel [the corporation] to perform” the 19 programming because “[t]he principles announced in New York Telephone . . . compel 20 the same result here.” Id. at 1128-29 (emphasis added). 21 Like Apple, the corporation protested, arguing “that the technological differences 22 between pen registers” and trap-and-trace programming “serve to distinguish this case.” 23 Id. at 1129-30. The company also complained that the AWA order made it bear “the 24 entire responsibility for the search.” Id. at 1129. It further insisted that the requirement 25 to reprogram its computers “(1) resulted in a serious drain upon existing personnel and 26 equipment; and (2) increased the likelihood of system malfunctions while at the same 27 time impairing the company’s ability to correct such problems.” Id. at 1132. It insisted 28 that the order would deprive it of “irreplaceable services provided by key personnel and 18 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 27 of 43 Page ID #:2120 103
1 [cause] the loss of use of various important pieces of equipment.” (Wilkison Decl. Ex. 6 2 at 24-25.) The Circuit was unpersuaded. “[I]t appears to this court to make little 3 difference whether . . . company technicians acting at the behest of federal officials” are 4 required to ensure that “a computer is programmed to detect electronic impulses which, 5 when decoded [by the software], provide a list of telephone numbers.” Id.7 6 Moreover, Mountain Bell was not even the first case to uphold an AWA order 7 compelling computer programming. The Third Circuit did the same in In Re Application 8 of the United States, 610 F.2d 1148, 1154 (3d Cir. 1979). There, as here and in 9 Mountain Bell, the corporation was ordered to program a computer to help gather data 10 for the government. Id. at 1152-53.8 The corporation, like Apple, complained that “the 11 technical procedures of tracing require that telephone company personnel, not federal 12 officers, fully execute the traces.” Id. at 1155. And, foreshadowing Apple’s arguments, 13 the company also complained that the work it was being asked to undertake “require[d] 14 more extensive and more burdensome involvement on the part of the . . . company” than 15 did the pen registers in New York Telephone. Id. at 1150. The Circuit rejected these 16 complaints because, among other things, the corporation’s refusal to help would 17 otherwise serve “to frustrate the execution of the courts’ warrants and to obstruct 18 criminal investigations.” Id. at 1155. Thus, there is nothing novel or per se unduly 19 burdensome about requiring Apple to write code.
20 7 Similarly, in the context of a motion to compel Google, Inc. to produce records 21 pursuant to a civil subpoena, a district court held that “creat[ing] new code to format and extract query and URL data from many computer banks, in total requiring up to eight 22 full time days of engineering time” was a burden that could be overcome through compensation. Gonzalez v. Google, 234 F.R.D. 674, 683 (N.D. Cal. 2006). Although 23 the undue-burden analysis under Federal Rules of Civil Procedure 26 and 45 differs from the analysis under the AWA, it is instructive that in a civil lawsuit—where importance of 24 evidence gathering is certainly less compelling than in a criminal investigation of a terrorist act—a district court compelled a private company to create code. “It is ‘obvious 25 and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981). 26 8 While the tracing programs required little time to input once developed, as 27 likely is the case here, the programs undoubtedly took longer to develop in the first 28 place. See Application of the United States, 610 F.2d at 1152. 19 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 28 of 43 Page ID #:2121 104
1 Contrary to Apple’s argument, the Order does not require it to “provide decryption 2 services” to the government. (Opp. 14.) But that would not be novel, either. Indeed, no 3 less an authority than Chief Justice Marshall held that Aaron Burr’s clerk could be 4 forced to decipher a coded letter of Burr’s, provided that doing so would not incriminate 5 the clerk. See United States v. Burr, 25 F. Cas. 38, 39-40 (C.C. Va. 1807). Or, to take a 6 more recent example, the court in Fricosu, 841 F. Supp. 2d at 1235, 1237, held that the 7 AWA empowered it to demand the decryption of a laptop, provided that the act of 8 decryption itself would not be used to incriminate the defendant. Here, Apple will not 9 incriminate itself by removing barriers to the lawful search of Farook’s iPhone. 10 To the extent that Apple seeks to analogize its burden to the one in Plum Creek 11 Lumber Co. v. Hutton, 608 F.2d 1283 (9th Cir. 1979), it is mistaken. In Plum Creek, the 12 government sought to compel a company that was the target of an investigation to allow 13 its employees to wear a large monitoring device while working in its sawmill. Id. at 14 1285-86. In addition to distracting the workers, these devices could get caught in the 15 mill’s equipment, creating an obvious physical danger to the workers. Id. at 1289 & n.4. 16 As the district court explained, the company bore “all the safety risks and [would] pay[] 17 the cost of all industrial accidents.” Id. at 1286. Weighed against the danger to the 18 workers was the weaker interest of reducing the time required for the investigation: far 19 from being necessary, the devices were simply a convenience. Id. at 1289 & nn.5, 6. 20 Under those circumstances, the Court would not extend New York Telephone. 21 Simply put, none of the special considerations in Plum Creek are present here: the 22 Order does not put Apple’s employees in immediate physical peril; Apple is not being 23 required to assist in an investigation into itself; the government has offered to 24 compensate Apple; and—as explained below—Apple’s assistance is not a luxury in an 25 OSHA investigation but a necessity in investigating a terrorist attack. Mountain Bell, 26 which postdates Plum Creek and relates to a much closer factual scenario, provides 27 better guidance. And as in Mountain Bell, the burden on Apple is not undue. 28 20 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 29 of 43 Page ID #:2122 105
1 b. Apple’s Proffered Estimate of Employee Time Does Not Establish an Undue Burden 2 3 Apple asserts that it would take six to ten employees two to four weeks to develop 4 new code in order to carry out the Court’s Order. (Opp. 13; Neuenschwander Decl. 5 ¶¶ 22-25.) Even taking Apple at its word, this is not an undue burden, especially given 6 Apple’s vast resources and the government’s willingness to find reasonable 7 compromises and provide reasonable reimbursement. 8 Apple is a Fortune 5 corporation with tremendous power and means: it has more 9 than 100,000 full-time-equivalent employees and had an annual income of over $200 10 billion dollars in fiscal year 2015—more than the operating budget for California. 11 (Compare Wilkison Decl. Ex. 2 at 9, 24, 41 (Apple 10-K), with Ex. 7 (FY 2015-16 12 budget).) Indeed, Apple’s revenues exceed the nominal GDPs of two thirds of the 13 world’s nations. To build the ordered software, no more than ten employees would be 14 required to work for no more than four weeks, perhaps as little as two weeks. Just as in 15 Mountain Bell—where the company complained it would lose “irreplaceable services 16 provided by key personnel” (Wilkison Decl. Ex. 6 at 24-25)—the burden for Apple here 17 is not unreasonable. Moreover, the government has offered to compensate Apple for 18 such costs that this Court determines have been actually incurred and are reasonably 19 necessary for its efforts. See New York Telephone Co., 434 U.S. at 175 (AWA order not 20 unduly burdensome in part because it provided for reimbursement for the company’s 21 efforts); Mountain Bell, 616 F.2d at 1132 (same). 22 The government has always been willing to work with Apple to attempt to reduce 23 any burden of providing access to the evidence on Farook’s iPhone. See Mountain Bell, 24 616 F.2d at 1124 (noting parties’ collaboration to reduce perceived burdens). Before 25 seeking the Order, the government requested voluntary technical assistance from Apple, 26 and provided the details of its proposal. (Supp. Pluhar Decl. ¶ 12.) Apple refused to 27 discuss the proposal’s feasibility and instead directed the FBI to methods of access that 28 the FBI had already tried without success. (Compare Neuenschwander Decl. ¶¶ 54-61, 21 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 30 of 43 Page ID #:2123 106
1 with Supp. Pluhar Decl. ¶ 12.) The government turned to the Court only as a last resort 2 and sought relief on narrow grounds meant to reduce possible burdens on Apple. The 3 Order allows Apple flexibility in how to assist the FBI. (Order ¶ 4.) The government 4 remains willing to seek a modification of the Order, if Apple can propose a less 5 burdensome or more agreeable way for the FBI to access Farook’s iPhone.9 In contrast, 6 Apple makes little effort to explain which parts of the court’s order are burdensome, and 7 in what ways. Nor does Apple propose feasible alternatives that it would find less 8 burdensome.10 Rather, relying on its exclusive knowledge of its software, Apple simply 9 asserts a single, complicated process, without any further elaboration. 10 In sum, Apple has failed to show that the only concrete burden it can identify—a 11 relatively low amount of technical labor—is undue, unreasonable, and noncompensable. 12 c. Impinging on Apple’s Marketing of Its Products as Search- Warrant-Proof Is Not an Undue Burden 13 14 Apple next claims that complying with search warrants will undermine the 15 public’s trust in the security of the company’s products and services—a reformulation of 16 its concern, raised in the Eastern District of New York, that compliance will tarnish its 17 brand. This is the same argument made by the corporations and rejected by the courts in 18 New York Telephone and Mountain Bell, 616 F.2d at 1128. Mountain Bell argued that 19 complying with the order would jeopardize its relationship with its customers, and that it
20 9 For the reasons discussed above, the FBI cannot itself modify the software on Farook’s iPhone without access to the source code and Apple’s private electronic 21 signature. The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that 22 course, however, that may provide an alternative that requires less labor by Apple programmers. See In re Under Seal, 749 F.3d 276, 281-83 (4th Cir. 2014) (affirming 23 contempt sanctions imposed for failure to comply with order requiring the company to assist law enforcement with effecting a pen register on encrypted e-mail content which 24 included producing private SSL encryption key).
25 10 For example, Apple suggests that—in complying with the Order—it would have to undertake “substantial” programming to make the software suitable for “consumer 26 interaction.” (Neuenschwander Decl. ¶ 19.) But Apple does not explain why Farook’s iPhone would need to be ready for “consumer interaction” simply to perform forensic 27 data extraction, and does not address the existence of available tools that Apple could 28 use to perform some of the ordered functions. (Perino Decl. ¶¶ 6.b, 25-29.) 22 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 31 of 43 Page ID #:2124 107
1 could not continue to operate if the public perceived the company as an extension of law 2 enforcement. (Wilkison Decl. Ex. 6 at 32-33.) Those arguments did not persuade those 3 courts then, and they should not persuade this Court now. Cf. Univ. of Pennsylvania v. 4 E.E.O.C., 493 U.S. 182, 195-98 (1990) (rejecting university’s argument that producing 5 certain information to the government would have a “chilling effect,” and declining to 6 recognize a business-interest privilege for withholding the information). 7 Apple also argues that the Order is unduly burdensome because it is in Apple’s 8 “basic interests” to make the data on its phones as secure as possible.11 (Opp. 23.) The 9 company in New York Telephone similarly asserted in its Supreme Court merits briefing 10 that “[p]rotection of this privacy [i.e., “the privacy of communications”] is fundamental 11 to the telephone business.” 1977 WL 189311, at *2. It added that its “principal basis” 12 for opposing the order was “the danger of indiscriminate invasions of privacy.” Id. at 13 *8. The Court rejected those arguments. 434 U.S. at 174. Moreover, programming 14 software is not “offensive to” Apple generally, New York Telephone, 434 U.S. at 174, 15 and here Apple’s own customer has asked to have the phone unlocked. Nor will 16 programming this particular software compromise the security of any Apple iPhone 17 other than Farook’s for reasons explained below. (See infra pp. 24-25.) 18 d. Apple’s Speculation that Third Parties Could Be Harmed in the Future if It Complies With the Order Does Not Establish an 19 Undue Burden on Apple 20 Apple speculates that if it submits to a lawful order to assist with a constitutional, 21 warranted search of a consenting customer’s phone in America, Apple will have no 22 choice but to help totalitarian regimes suppress dissidents around the globe, and 23 “hackers, criminals, and foreign agents” will have access to the data on millions of 24
25 11 Apple insists that if this Court does not hold that it is a per se undue burden to 26 compel a corporation to act against its business interests, a parade of horribles will ensue. (Opp. 26.) As noted above, this line of argument has been repeatedly rejected by 27 the courts. Moreover, the Fourth Amendment, the proximity and necessity factors, and 28 the courts’ ultimate discretion provide ample protection against executive overreaching. 23 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 32 of 43 Page ID #:2125 108
1 iPhones. (Opp. 1-2, 28.) This putative public burden, Apple argues, is a basis to relieve 2 it from the Order. Apple’s fears are overblown for reasons both factual and legal.12 3 To begin with, many of the most compelling examples of cybercrime that Apple 4 describes involve not breaches of physical-device security, but rather breaches of 5 network security. That is the “the daily siege” of “hackers, cyber-criminals, and foreign 6 agents” with which the government and victims contend. (Opp. 1.) Nothing in the 7 Court’s Order affects Apple’s network security. Rather, the features at issue concern 8 only access to a physical device. Thus, for the government even to benefit from the 9 software set forth in the Order, it first had to recover Farook’s iPhone itself. (Perino 10 Decl. ¶¶ 6.c, 31-36.) That fact alone eliminates much of Apple’s worry. 11 Next, contrary to Apple’s stated fears, there is no reason to think that the code 12 Apple writes in compliance with the Order will ever leave Apple’s possession. Nothing 13 in the Order requires Apple to provide that code to the government or to explain to the 14 government how it works. And Apple has shown it is amply capable of protecting code 15 that could compromise its security. For example, Apple currently protects (1) the source 16 code to iOS and other core Apple software and (2) Apple’s electronic signature, which as 17 described above allows software to be run on Apple hardware. (Hanna Decl. Ex. DD at 18 62-64 (code and signature are “the most confidential trade secrets [Apple] has”).) Those 19 —which the government has not requested—are the keys to the kingdom. If Apple can 20 guard them, it can guard this. 21
22 12 Apple speculates that there is no law-enforcement benefit to removing barriers 23 to unlocking an iPhone because criminals and terrorists will encrypt their data in other ways. (Opp. 25.) If this reasoning were correct, there would be no purpose to wire-taps, 24 either. But the reasoning is flawed, for three reasons. First, as the wire-tap context illustrates, just because criminals can add another layer of security (such as talking in 25 code), they do not always do so. Second, even if there are further layers of encryption, the government may be able to pierce that encryption—but only if it can get into the 26 phone in the first place. Third, even assuming counterfactually that unlocking iPhones would not be useful in the future due to changes in criminal and terrorist behavior, it is 27 useful today for gathering evidence related to the terrorist mass-murder in San 28 Bernardino. 24 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 33 of 43 Page ID #:2126 109
1 Even if “criminals, terrorists, and hackers” somehow infiltrated Apple and stole 2 the software necessary to unlock Farook’s iPhone (Opp. 25), the only thing that software 3 could be used to do is unlock Farook’s iPhone. (Perino Decl. ¶¶ 6.a, 18-24.) Far from 4 being a master key, the software simply disarms a booby trap affixed to one door: 5 Farook’s. The software “will be coded by Apple with a unique identifier of the phone so 6 that the [software] would only load and execute on the SUBJECT DEVICE [i.e., 7 Farook’s iPhone].” (Order ¶ 3.) This phone-specific limitation was not dreamed up by 8 the government, but instead employs Apple’s well-publicized security paradigm. A 9 “unique ID (ECID)” associated with each physical iPhone is incorporated into the 10 phone’s operating system. (Perino Decl. ¶ 20; Hanna Decl. Ex. K at 6.) “Adding the 11 ECID ‘personalizes’ the authorization for the requesting device.” (Id.) Apple has 12 designed its phones so that every operating system must pair with the phone’s ECID. 13 (Perino Decl. ¶¶ 18-24; Hanna Decl. Ex. K at 6 (describing how the Apple server “adds 14 the ECID” before it “signs” the iOS to be used for the upgrade).) The operating system 15 and ECID must correspond for the operating system to work. The ordered software 16 would rely upon the same limitation. 17 Apple implies that the code could be modified to run on other phones, but a 18 second Apple security layer prevents that from happening: Apple devices will only run 19 software that is electronically “signed” by Apple. (Hanna Decl. Ex. K at 6 (“only Apple- 20 signed code can be installed on a device”).) “Signing” the software described in the 21 Order will not release Apple’s signature to the government or anyone else—Apple signs 22 all publicly available iOS software, but that does not disclose the signature itself. 23 (Perino Decl. ¶¶ 9, 13-17, 24, 28.) And if the code were modified to run on a phone with 24 a different ECID, it would lack a valid digital signature. Without that signature, the code 25 would not run at all on any iOS phone with intact security. (Id.) Thus, it is simply not 26 plausible that Apple’s complying with the Order would cripple iPhone security. 27 Similarly misleading is Apple’s argument that the Order will force Apple to 28 provide access to data to foreign governments. As a legal matter, the Order does not— 25 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 34 of 43 Page ID #:2127 110
1 could not—compel Apple to follow or disregard the laws of foreign countries. The 2 pressure of foreign law on Apple flows from its decision to do business in foreign 3 countries, not from the Order. Apple suggests that, as a practical matter, it will cease to 4 resist foreign governments’ efforts to obtain information on iPhone users if this Court 5 rules against it. It offers no evidence for this proposition, and the evidence in the public 6 record raises questions whether it is even resisting foreign governments now. For 7 example, according to Apple’s own data, China demanded information from Apple 8 regarding over 4,000 iPhones in the first half of 2015, and Apple produced data 74% of 9 the time. (Wilkison Decl. Ex. 8 at 3.) Apple appears to have made special 10 accommodations in China as well: for example, moving Chinese user data to Chinese 11 government servers, and installing a different WiFi protocol for Chinese iPhones. (See 12 Wilkison Decl. Ex. 9 (reporting that in August 2014, Apple moved Chinese users’ 13 iCloud data onto state-owned servers); Ex. 10 (reporting that Apple produced a modified 14 iPhone for sale in mainland China that used a “WAPI” WiFi standard as required by the 15 Chinese government); Ex. 11 (reporting Apple was the first Western company to have its 16 products use WAPI and “[t]hus, [Apple] is presumably sharing confidential information 17 with the [Chinese] government”).) Such accommodations provide Apple with access to 18 a huge, and growing, market. (Wilkison Decl. Ex. 12.) This Court’s Order changes 19 neither the carrots nor the sticks that foreign governments can use on Apple. Thus, it 20 does not follow that if America forgoes Apple’s assistance in this terrorism investigation, 21 Apple will refuse to comply with the demands of foreign governments. Nor does it 22 follow that if the Court stands by its Order, Apple must yield to foreign demands, made 23 in different circumstances without the safeguards of American law. 24 Lawful process in America cannot be confined by potential lawless oppression 25 elsewhere merely because a corporation chooses to manufacture and market its products 26 globally, without regard to its host countries’ legal regimes. Apple identifies no case 27 holding that such a “burden” is cognizable under the AWA. The concerns Apple raises 28 26 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 35 of 43 Page ID #:2128 111
1 are unproven, and in any event would not be an unreasonable burden on Apple created 2 by the Order, but an inevitable consequence of Apple’s own business decisions. 3 e. Cumulative Future Compliance Costs Should Not Be Considered and Are, In Any Event, Compensable 4 5 Next, Apple argues that the Order is unduly burdensome because, if it complies 6 here, it is likely to face other AWA orders in the future. By accumulating its 7 hypothetical future burdens, Apple suggests that because so much criminal evidence is 8 hidden on its warrant-proof iPhones, it should not be compelled to assist in gathering 9 evidence related to the terrorist attack in San Bernardino. (Opp. 26.) Apple is wrong. 10 To begin with, Apple has identified no precedent for considering possible 11 prospective burdens as a basis for withholding a narrow AWA order now. Neither the 12 Supreme Court in New York Telephone nor the Ninth Circuit in Mountain Bell 13 considered prospective cumulative costs, even though “it [was] plain, given the 14 Company’s policy of refusing to render voluntary assistance in installing pen registers 15 and the Government’s determination to continue to utilize them, that the Company will 16 be subjected to similar orders in the future.” New York Telephone, 434 U.S. at 165 n.6. 17 Instead, those courts looked only at the costs associated with the particular order. Id. at 18 174; Mountain Bell, 616 F.2d at 1133. This follows logically from the individualized, 19 fact-intensive nature of the AWA inquiry. Apple’s future costs—which can be 20 compensated in future cases—are mere guesswork, especially since, without knowing 21 the facts, there is no way to predict how the courts in hypothetical future cases will 22 weigh the three New York Telephone factors.13 23 Moreover, Apple has proven itself more than able to comply with a large volume 24 of law-enforcement requests. Apple has a dedicated team for doing so (Olle Decl. ¶ 2), 25 and it has published guidelines on how legal process will be handled (Wilkison Decl. Ex.
26 13 Apple is reportedly already working to re-design the iPhone to preclude compliance with any similar future court orders, which is another reason to question its 27 claimed cumulative costs and its assertion that coding is an undue burden for the 28 company. (Wilkison Decl. Ex. 14.) 27 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 36 of 43 Page ID #:2129 112
1 13). In the first half of 2015 alone, Apple handled 27,000 “device requests”—often 2 covering multiple devices—and provided data approximately 60% of the time. 3 (Wilkison Decl. Ex. 8 at 3-4.) If Apple can provide data from thousands of iPhones and 4 Apple users to China and other countries, it can comply with the AWA in America. (Id.) 5 This is not speculation because, in fact, Apple complied for years with American court 6 orders to extract data from passcode-locked iPhones, dedicating infrastructure and 7 personnel in order to do so. (Wilkison Decl. Ex. 14 at 2-3; id. Ex. 16 at 3 n.3; Hanna 8 Decl. Ex. DD at 56.) It never objected or sought compensation. (Compare Olle Decl. 9 ¶ 13, with Hanna Decl. Ex. DD 58 (“[W]e’ve never required compensation.”).) Apple 10 can handle, and has handled, this burden.14 11 In sum, the only concrete, cognizable burdens Apple can identify are reasonable, 12 not undue, and the remaining burdens are speculative and unrecognized by precedent. 13 3. Apple’s Assistance Is Necessary 14 Without Apple’s assistance, the government cannot carry out the search of 15 Farook’s iPhone authorized by the search warrant. Apple has ensured that its assistance 16 is necessary by requiring its electronic signature to run any program on the iPhone. 17 Even if the Court ordered Apple to provide the government with Apple’s cryptographic 18 keys and source code, Apple itself has implied that the government could not disable the 19 requisite features because it “would have insufficient knowledge of Apple’s software and 20 design protocols to be effective.” (Neuenschwander Decl. ¶ 23.) 21
22 14 Apple also complains of having “to testify about this back door as a government witnesses at trial.” (Opp. 26). “The giving of testimony and the attendance upon court 23 or grand jury in order to testify are public duties which every person within the jurisdiction of the government is bound to perform upon being properly summoned.” 24 Blair v. United States, 250 U.S. 279, 281 (1919). Moreover, Apple makes no attempt to quantify such costs, instead relying on the implication that the crown jewels of its 25 intellectual property would be released to the world in court. Experience suggests that this is more of a fear than a reality. During the years when Apple followed court orders 26 to extract data from passcode-locked iPhones, the vast majority of affiliated criminal cases were resolved without any need for Apple to testify. (Hanna Decl. Ex. DD 24-25.) 27 Moreover, as Apple conceded, in cases in which testimony from an Apple representative 28 was necessary, no intellectual property was lost. (Id. 25.) 28 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 37 of 43 Page ID #:2130 113
1 Rather than acknowledge this point, Apple instead blames the San Bernardino 2 County Department of Public Health and the FBI. Apple argues that the FBI could have 3 gained access to some of the information via a forced backup to Farook’s iCloud 4 account, but since the FBI changed the iCloud password to gain quick access to what 5 was stored in previous backups in the immediate aftermath of the San Bernardino 6 shooting, this path was blocked. (Opp. 11.) That is both untrue and irrelevant. 7 For several reasons, a forced iCloud backup would not have been successful even 8 if the password had remained unchanged. Farook’s iPhone was found powered off. 9 (Supp. Pluhar Decl. ¶ 2.) Subsequent testing has revealed that once powered off, an 10 iPhone will not back itself up to an iCloud account unless and until it has been unlocked 11 at least once by use of the passcode. (Perino Decl. ¶¶ 6.d, 37-39.) Moreover, the 12 evidence on Farook’s iCloud account suggests that he had already changed his iCloud 13 password himself on October 22, 2015—shortly after the last backup—and that the auto- 14 backup feature was disabled. (Pluhar Decl. ¶ 8; Supp. Pluhar Decl. ¶ 9.) A forced 15 backup of Farook’s iPhone was never going to be successful, and the decision to obtain 16 whatever iCloud evidence was immediately available via the password change was the 17 reasoned decision of experienced FBI agents investigating a deadly terrorist conspiracy. 18 Moreover, even if—contrary to how Apple built and designed it—Farook’s 19 iPhone could have been forced to sync to Apple’s iCloud network, that would not be an 20 adequate substitute to unlocking and searching the phone itself. Both the FBI’s testing 21 and Apple’s security documentation show that entire categories of evidence—including 22 device-level data such as the “keyboard cache” (which records recent keystrokes)— 23 reside only on the iPhone and not on an iCloud backup, and that some of the backup data 24 would still have been encrypted. (Supp. Pluhar Decl. ¶ 10.) But that data remains on the 25 iPhone. Thus, even with a full set of backups, the government still would have needed to 26 search the phone itself in order to leave no stone unturned in this important investigation. 27 Most importantly, even assuming counterfactually that something could have been 28 recovered through a forced iCloud backup, there have been no backups since October 19, 29 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 38 of 43 Page ID #:2131 114
1 2015, and Apple concedes there is no way to force a backup now. Thus, the only way to 2 recover any subsequent data—whether subject to backup or otherwise—is to unlock 3 Farook’s iPhone. And for the FBI to do that, Apple must remove the barriers it put on 4 that phone. 5 Apple insists that under New York Telephone, the government must show “there is 6 no conceivable way” to search Farook’s iPhone without Apple’s assistance, and 7 contends that the government has not borne this burden. (Opp. 30); 434 U.S. at 174. 8 Apple’s quoting of New York Telephone lacks context. There, the FBI could install the 9 pen register on its own—just not in an “inconspicuous” location. Id. at 161. Moreover, 10 there is no indication that the FBI first enlisted the entire federal government in search of 11 investigative alternatives. Id. at 175 (“The FBI . . . was unable to find a location where it 12 could install its own pen registers without tipping off the targets of the investigation.” 13 (emphasis added)). The broader reasoning of New York Telephone further refutes an 14 absolute necessity standard: the Court expressly relied upon the “necessary or 15 appropriate” language in the All Writs Act. Id. at 172-74. Regardless, even if absolute 16 necessity were required, the undisputed evidence is that the FBI cannot unlock Farook’s 17 phone without Apple’s assistance. (Wilkison Decl. Ex. 16 at 2-3; Pluhar Decl. ¶ 9.) 18 * * * 19 The “definite and concrete” facts of this case—as opposed to the “hypothetical or 20 abstract” future scenarios conjured up by Apple, see Corsi, 326 U.S. at 93—amply 21 support the Court’s Order. Apple deliberately established a security paradigm that keeps 22 Apple intimately connected to its iPhones. This same paradigm makes Apple’s 23 assistance necessary for executing the lawful warrant to search Farook’s iPhone. Such 24 assistance imposes a burden that is not unreasonable, particularly for a company of 25 Apple’s wealth, size, and technical prowess. The Order does no more than require Apple 26 to unknot some of the tangle it has made, so that the court-authorized investigation into 27 Farook’s iPhone can proceed. 28 30 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 39 of 43 Page ID #:2132 115
1 D. The Order Does Not Implicate, Let Alone Violate, the First and Fifth Amendments 2 Apple begins its Opposition by insisting that the issues in this case should be left 3 to Congress (Opp. 9), and ends by insisting that the Constitution takes those issues off 4 the table (Opp. 32-34). Not so. The Order is constitutional, notwithstanding Apple’s 5 assertion of corporate speech rights and Lochner-era substantive due process.15 6 1. Incidentally Requiring a Corporation to Add Functional Source Code 7 to a Commercial Product Does Not Violate the First Amendment 8 Apple asserts that functional source code in a corporation’s commercial product is 9 core protected speech, such that asking it to modify that software on one device—to 10 permit the execution of a lawful warrant—is compelled speech in violation of the First 11 Amendment. This claim “trivializes the freedom protected in Barnette and Wooley.”16 12 See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62 (2006). 13 Before reaching the specifics of Apple’s claim, it is important to start with a 14 threshold observation: the “essential operations” of the American legal system rest upon 15 people sometimes having to say things that they would rather not say—such as when a 16 witness is subpoenaed and sworn to speak the whole truth and nothing but the truth. 17 West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 645 (1943) (Murphy, J., concurring) 18 (compelled speech doctrine inapplicable to “essential operations of government” such 19 “as in the case of compulsion to give evidence in court”); see also Murphy v. Waterfront
20 15 The search of a smartphone does implicate the Fourth Amendment, see Riley, 21 134 S. Ct. at 2484, but the government has doubly satisfied the Fourth Amendment by obtaining (1) a warrant, id., and (2) the consent of the phone’s owner. Moreover, Apple 22 cannot assert any privacy interests of the phone’s deceased user, the terrorist Farook. See Simmons v. United States, 390 U.S. 377, 389 (1968) (“[R]ights assured by the Fourth 23 Amendment are personal rights, and that they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search.”). 24 16 Apple rightly does not attempt to claim standing to assert the First Amendment 25 rights of iPhone users whose phones are not being searched. To the extent amici raise such arguments, they are untethered to the issues actually before the Court and, in any 26 event, foreclosed by the Supreme Court’s ruling in Zurcher v. Stanford Daily, 436 U.S. 547, 563-65 (1978), rejecting a newspaper’s claim that a search of its records would chill 27 its speech rights because it would “resort to self-censorship to conceal its possession of 28 information of potential interest to the police.” 31 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 40 of 43 Page ID #:2133 116
1 Comm’n of New York Harbor, 378 U.S. 52, 93-94 (1964) (“Among the necessary and 2 most important of the powers of . . . the Federal Government to assure the effective 3 functioning of government in an ordered society is the broad power to compel residents 4 to testify in court or before grand juries or agencies.”), abrogated on other grounds by 5 United States v. Balsys, 524 U.S. 666 (1998). This form of “compelled speech” runs 6 throughout both the criminal and civil justice systems, from grand jury and trial 7 subpoenas to interrogatories and depositions. See, e.g., Apple Inc.’s Motion to Compel 8 in Apple Inc. v. Samsung Electronics, Docket No. 467 in Case No. 11–cv–1846–LHK, at 9 11 (N.D. Cal. Dec. 8, 2011) (Apple’s seeking court order compelling Samsung to 10 produce source code to facilitate its compelled deposition of witnesses about that source 11 code). If the First Amendment swept as broadly as Apple suggests, there would be no 12 need, for example, for the Fifth Amendment’s privilege against self-incrimination. 13 Apple’s claim is particularly weak because it does not involve a person being 14 compelled to speak publicly, but a for-profit corporation being asked to modify 15 commercial software that will be seen only by Apple. There is reason to doubt that 16 functional programming is even entitled to traditional speech protections. See, e.g., 17 Universal City Studios, Inc. v. Corley, 273 F.3d 429, 454 (2d Cir. 2001) (recognizing 18 that source code’s “functional capability is not speech within the meaning of the First 19 Amendment”). “[T]hat [programming] occurs at some level through expression does not 20 elevate all such conduct to the highest levels of First Amendment protection. Doing so 21 would turn centuries of our law and legal tradition on its head, eviscerating the carefully 22 crafted balance between free speech and permissible government regulation.” United 23 States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1128-29 (N.D. Cal. 2002). 24 To the extent Apple’s software includes expressive elements—such as variable 25 names and comments—the Order permits Apple to express whatever it wants, so long as 26 the software functions. Cf. Karn v. United States Department of State, 925 F. Supp. 1, 9- 27 10 (D.D.C. 1996) (assuming, without deciding, that source code was speech because it 28 had English comments interspersed). Indeed, the Order’s “broad requirements” do “not 32 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 41 of 43 Page ID #:2134 117
1 dictate any specific message,” but leave it open to Apple to decide how to develop the 2 code. See Envtl. Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 849-51 (9th Cir. 2003). 3 And even assuming, arguendo, that the Order compels speech-like programming, there 4 is no audience: Apple’s code will be developed in the utmost secrecy and will never be 5 seen outside the corporation. Cf. Full Value Advisors, LLC v. S.E.C., 633 F.3d 1101, 6 1108-09 (D.C. Cir. 2011) (“constitutional concerns” with compelled public speech are 7 not triggered when government commission “is [the] only audience”); United States v. 8 Sindel, 53 F.3d 874, 878 (8th Cir. 1995) (lesser concern where compelled speech lacks 9 “public dissemination”). This stands in stark contrast to the cases cited by Apple, in 10 which software creators were forbidden from publicly sharing what they had written. 11 For all of these reasons, the Order simply does not compel speech. 12 At most, the Order compels conduct—namely, the removal of barriers from 13 Farook’s iPhone—with an incidental effect on “speech” (i.e., programming). That does 14 not amount to a First Amendment violation for the reasons explained by the Supreme 15 Court in Rumsfeld, which rejected a First Amendment challenge to the requirement that 16 law schools host and promote military recruitment even if the schools objected to 17 military policy. Like in Rumsfeld, “[t]he compelled speech . . . is plainly incidental to 18 the [Order’s] regulation of conduct.” 547 U.S. at 62. The Order simply requires Apple 19 to remove barriers from Farook’s phone. That is conduct, not speech. As the Supreme 20 Court explained, “Congress, for example, can prohibit employers from discriminating in 21 hiring on the basis of race. The fact that this will require an employer to take down a 22 sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as 23 one regulating the employer’s speech rather than conduct.” Id. 24 Further, how Apple’s software is engineered “is not inherently expressive.” Id. at 25 64. Code determining how many retries a user is permitted before the data on an iPhone 26 is permanently lost “lack[s] the expressive quality of a parade, a newsletter, or the 27 editorial page of a newspaper.” Id. As in Rumsfeld, any expressive dimension to 28 Apple’s compliance with the Order arises “only because [Apple] accompanied [its] 33 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 42 of 43 Page ID #:2135 118
1 conduct with speech explaining it.” Id. at 66. Presumably, Apple will respond that if it 2 modifies Farook’s iPhone to allow the government access to the phone, it “could be 3 viewed as sending the message that [it] see[s] nothing wrong with [such access], when 4 [it] do[es].” Id. at 64-65. But the Supreme Court derided that argument in Rumsfeld, 5 explaining that “[n]othing about recruiting suggests that law schools agree with any 6 speech by recruiters, and nothing in the Solomon Amendment restricts what the law 7 schools may say about the military’s policies.” Id. at 65. So too here. And just as in 8 Rumsfeld, the public “can appreciate the difference between speech [Apple] sponsors” 9 and code Apple develops “because [it is] legally required to do so.” Id. It is extremely 10 unlikely that anyone could understand Apple to be expressing a message of hostility to 11 “data security and the privacy of citizens” (Opp. 33), “given both the nature of [Apple’s] 12 activity and the factual context and environment in which it was undertaken.” Jacobs v. 13 Clark Cty. Sch. Dist., 526 F.3d 419, 438 (9th Cir. 2008). 14 Even if, despite the above, the Order placed some burden on Apple’s ability to 15 market itself as hostile to government searches, that would not establish a First 16 Amendment violation because the Order “promotes a substantial government interest 17 that would [otherwise] be achieved less effectively.” Rumsfeld, 547 U.S. at 67. There is 18 no question that searching a terrorist’s phone—for which a neutral magistrate has found 19 probable cause—is a compelling government interest. See Branzburg v. Hayes, 408 U.S. 20 665, 700 (1972) (recognizing that “the investigation of a crime” and “securing the 21 safety” of citizens are “fundamental” interests for First Amendment purposes). As set 22 forth above, the FBI cannot search Farook’s iPhone without Apple’s assistance, and 23 Apple has offered no less speech-burdensome manner for providing that assistance. 24 For all of these reasons, Apple’s First Amendment claim must fail. 25 2. There Is No Due Process Right Not to Develop Source Code 26 Apple lastly asserts that the Order violates its Fifth Amendment right to due 27 process. Apple is currently availing itself of the considerable process our legal system 28 provides, and it is ludicrous to describe the government’s actions here as “arbitrary.” 34 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 43 of 43 Page ID #:2136 119
1 (Opp. 34); see County of Sacramento v. Lewis, 523 U.S. 833, 846-49 (1998). If Apple is 2 asking for a Lochner-style holding that businesses have a substantive due process right 3 against interference with its marketing strategy or against being asked to develop source 4 code, that claim finds no support in any precedent, let alone “in the traditions and 5 conscience of our people,” “the concept of ordered liberty,” or “this Nation’s history.” 6 Washington v. Glucksberg, 521 U.S. 702, 721 (1997). 7 III. CONCLUSION 8 The All Writs Act empowered this Court to issue the Order, just as it empowered a 9 court to order a corporation to engage in computer programming and technical assistance 10 in Mountain Bell. As the Supreme Court has repeatedly recognized—and as Congress’s 11 repeated reaffirmation and expansion of the Act have confirmed—the Act’s flexibility in 12 confronting new problems shows the Framers’ foresight and genius, not a blind spot. As 13 the decades since New York Telephone have shown, as indeed the centuries since 1789 14 have proven, courts’ exercise of power under the Act does not lead to a headlong tumble 15 down a slippery slope to tyranny. That is because the Act itself—by relying upon the 16 sound discretion of federal judges and by being subordinate to specific congressional 17 legislation addressing the particular issue—builds in the necessary safeguards. 18 Moreover, the Fourth Amendment, which Apple concedes has been satisfied here, 19 protects against unreasonable privacy invasions. 20 In short, the limits Apple seeks are already found in the Constitution, the Act, and 21 the three branches of government: congressional legislation, executive restraint, and 22 judicial discretion. The government respectfully submits that those authorities should be 23 entrusted to strike the balance between each citizen’s right to privacy and all citizens’ 24 right to safety and justice. The rule of law does not repose that power in a single 25 corporation, no matter how successful it has been in selling its products. 26 Accordingly, the government respectfully requests that this Court DENY Apple’s 27 motion to vacate this Court’s February 16, 2016 Order, and compel Apple to assist the 28 FBI in unlocking Farook’s iPhone. 35