The All Writs Act 28 USC s. 1651 is a United States statute that authorizes the federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The original incarnation of the statute dates back to the Judiciary Act of 1789. It was used by the United States Attorney’s Office in New York in 2014 to compel a smartphone manufacturer to defeat the security feature of a smartphone allegedly involved in a credit card fraud case. And it has come under more recent scrutiny in an application involving Apple, Inc. before Magistrate Judge James Orenstein of the United States District Court, Eastern District of New York, in In Re Order Requiring Apple, Inc. To Assist In The Execution Of A Search Warrant Issued By This Court, 15 Misc. 1902-JO (2015) (“Re Order Apple, Inc.“). The application has raised issues that may be of interest to the criminal defence lawyer and privacy hawks in Canada.

In a ruling dated October 9, 2015, Judge Orenstein introduced the factual context, at p. 1: “In a sealed application filed on October 8, 2015, the government asks the court to issue an order pursuant to the All Writs Act, 28 U.S.C. s. 1651, directing Apple, Inc. (‘Apple’) to assist in the execution of a federal search warrant by disabling the security of an Apple device that the government has lawfully seized pursuant to a warrant issued by this court. Law enforcement agents have discovered the device to be locked, and have tried and failed to bypass that lock. As a result, they cannot gain access to any data stored on the device notwithstanding the authority to do so conferred by this court’s warrant.”

The government cited United States v New York Telephone Company, 434 US 159, 174 (1977) in support of the application. In that case, the Supreme Court of the United States held that the All Writs Act empowered the district court to compel the New York Telephone Company to install a pen register to execute a search warrant. Judge Orenstein was unpersuaded and distinguished New York Tel Co in the following way, at p. 7:

“…[U]nlike the Telephone Company, Apple is not ‘a highly regulated public utility with a duty to serve the public[.]’ It is a private-sector company that is free to choose to promote its customers’ interest in privacy over the competing interest of law enforcement. Indeed, whereas in New York Tel. Co. ‘it [could] hardly be contended that the Company…had a substantial interest in not providing [the requested] assistance,’ it is entirely possible, if not likely, that Apple has thus far made a deliberate decision to balance those competing interests in favour of its customers’ privacy preferences, as discussed further below. Similarly, unlike the Telephone Company, which as the Supreme Court noted, regularly used pen registers for its own business purposes, there is nothing in the record to suggest that Apple has or wants the ability to defeat customer-installed security codes to access the encrypted data that its customers store on Apple devices after purchasing them.”

Judge Orenstein went on to defer ruling on the application in order to give Apple an opportunity to establish the extent to which it would find the requested order burdensome, at p. 10:

“In short, I conclude that the authorities on which the government relies do not support the conclusion that the All Writs Act permits the relief that the government seeks. That does not necessarily mean, however, that such relief is unavailable under the statute. While the preceding analysis strongly suggests that granting the instant motion would be inconsistent with the purpose of the All Writs Act as interpreted in the cases discussed above, one important missing piece of the analysis is the extent to which Apple would find the requested order burdensome. Indeed, regardless of whether I were inclined to grant or deny the motion at this point, I would need such information, as ‘[C]ourts have held that due process requires that a third party subject to an order under the All Writs Act be afforded a hearing on the issue of burdensomeness prior to compelling it to provide assistance to the Government. In re XXX, Inc., 2014 WL 5510865, at *2 (citing In re Installation of a Pen Register or Touch-Tone Decoder & a Terminating Trap, 610 F,2d 1148, 1157 (3d Cir. 1979); United States v. Mountain States Tel. & Tel. Co., 616 F.2d 1122, 1132-33 (9th Cir. 1980)).”

News of Judge Orenstein’s ruling broke the next day in an article by Ellen Nakashima titled With court order, federal judge seeks to fuel debate about data encryption published in The Washington Post edition of October 10, 2015. Ms. Nakashima referred to law enforcement officials as stating that the iPhone at issue was running on an older version of Apple’s operating system that Apple could unlock. But in a post to the Electronic Frontier Foundation’s blog titled Judge to DOJ: Not All Writs dated October 12, 2015, staff attorney Andrew Crocker wrote that, irrespective of whether the device was running on iOS 8 or later “the government’s request raises questions about the limits of what Apple can be forced to do. Judge Orenstein has not been living under a rock, and he notes that we’re in the midst of a raging debate about government regulation of encryption.” (See: Memorandum and Order, at p. 4, and footnote 1; And also: Tim Cushing. Judge Calls Bluffs On Encryption Debate; Asks Apple To Explain Why Unlocking A Phone Is ‘Unduly Burdensome’. TechDirt. October 13, 2015)

Judge Orenstein set deadlines for Apple and the government to submit a written response and reply. A date was scheduled for oral argument. Then, on October 29, 2015, the defendant in the criminal case, who had been originally charged with three counts of distributing methamphetamine, entered a guilty plea to one count of conspiracy to distribute. Nevertheless, on October 30, 2015, the government advised the court that it would persist in the application although no longer on an expedited basis. That prompted Judge Orenstein to direct the government “to explain why the application is not moot.” (See: Cyrus Farivar. After guilty plea, judge confused as to why prosecutors still want iPhone unlocked. ArsTechnica. October 30, 2015)

During the interim, Apple had filed its written response. In an article titled Government pressure for Apple to bypass iPhone encryption reduced as owner enters guilty plea published by PCWorld on October 30, 2015, John Ribeiro reported that Apple took the following position on the burdensome issue:

“The company said it was possible to extract certain types of unencrypted user data from the iPhone 5s phone running iOS 7, though it would not have been possible if it was a device running iOS 8 or higher. But it added that accessing the information on the phone and the possible requirement that Apple staff testify at trial would put an unnecessary burden on the company as the number of government requests increase.

As significant was Apple’s comment that forcing it to extract data in the case, without a clear legal authority, could threaten the trust between Apple and its customers and substantially tarnish the Apple brand, which would be a harm to its reputation that could have a longer term economic impact beyond the mere cost of performing the single extraction at issue. ‘Public sensitivity to issues regarding digital privacy and security is at an unprecedented level. This is true not only with respect to illegal hacking by criminals but also in the area of government access – both disclosed and covert’.”

An application like the one before Judge Orenstein in Re Order Apple, Inc. is of interest to the criminal defence lawyer in Canada because it looks similar to the legal regime that previously governed production orders in s. 487.012 of the Criminal Code. Parliament amended s. 487.012 in 2014 to repeal the production order and replace it with the preservation demand. A better comparison is between an order under the All Writs Act and an assistance order in Canada that is invariably granted in tandem with a wiretap authorization under ss. 186 and 487.02 of the Code.

The recent litigation in Canada regarding production orders that were issued before the amendment to s. 487.012 began with R v Telus Communications Co., [2013] 2 SCR 3 where the Supreme Court of Canada held that a general warrant under s. 487.01 of the Code could not be used to compel a telecommunication company to provide prospective text messages to the police. A wiretap authorization is the appropriate judicial order that requires law enforcement to establish investigative necessity (with some exceptions) in addition to probable cause. In R v Croft, 2014 ABQB 215, a case on which I was counsel, Justice Brian R. Burrows of the Court of Queen’s Bench in Edmonton, Alberta, extended the Telus ruling to encompass historic text messages that were seized by a production order under s. 487.012. Since then, the ruling in Croft has not been followed in R v Carty, 2014 ONSC 212, R v AJB, 2015 BCCA 126 and R v Pazder, 2015 ABQB 493. Although the question about the use of a production order to obtain historic text messages was left open by the Supreme Court of Canada in Telus, it appears that the precise issue in these cases is unlikely to arise again. I understand that Telus Communications Co. no longer stores historic text messages on its servers. At some point, the old cases where potential evidence exists will simply run out of shelf life.

It is important to emphasize, as held by Judge Orenstein in Re Order Apple, Inc., that jurisprudence under the All Writs Act requires that a third party such as a manufacturer be afforded a hearing on the issue of burdensomeness prior to being compelled to provide assistance to the government. The issue of burdensomeness has not been incorporated into Canadian law although Justice Thomas Cromwell hinted at it in his dissenting reasons in Telus, at para. 126, where he commented on the inconvenience to Telus of complying with multiple successive warrants of fixed duration.

I am not aware of any application by a law enforcement agency in Canada for a judicial order compelling the assistance of a manufacturer to unlock a device as occurred in Re Order Apple, Inc. That is not to say that none exists. I just don’t know about any. Usually, an investigating police agency such as the RCMP will obtain a search warrant authorizing the search of a device such as a smartphone and the seizure of the stored contents. If the device is locked, and technologists at the local detachment or division cannot break into it, the RCMP will send it to the Tech Crime Lab in Ottawa where more sophisticated technology will be used to defeat, for example, a passcode. That, of course, does not reveal what a police agency may do if it cannot break into a phone nor does it resolve the encryption issue raised in Re Order Apple, Inc.

Meanwhile, the application in Re Order Apple, Inc. remains pending. Judge Orenstein also ordered that, to the extent the government’s response to the mootness question requires disclosure of information occurring before a grand jury, the government may file its response under seal along with a redacted version suitable for public access. There has been some speculation that the government is continuing with the application because it believes that the phone contains data relevant to another ongoing investigation or that other data is pertinent to sentencing. That remains to be seen.