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Case 5:16-Cm-00010-SP Document 149 Filed 03/10/16 Page 1 of 43 Page ID #:2094 Case 5:16-cm-00010-SP Document 149 Filed 03/10/16 Page 1 of 43 Page ID #:2094 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 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 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 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 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 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)
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