On February 16, 2016, the United States government brought an application before Magistrate Judge Sheri Pym, in the District Court for the Central District of California, for an order under the All Writs Act, 28 USC s 1651 requiring Apple Inc. to provide assistance to the FBI in the search of Syed Rizwan Farook’s work iPhone that had been seized under a search warrant dated December 3, 2015. The government asserts in the Memorandum of Points and Authorities, at p. 1, that Farook was, “…one of the terrorists who caused the December 2, 2015 shooting death of 14 people, and the shooting and injuring of 22 others, at the Inland Regional Center (“IRC”) in San Bernardino, California.”

The All Writs Act is a general purpose statute dating back to 1789 that permits a court to require third parties to render assistance in the execution of a court order when “necessary or appropriate”. In Canada, s. 487.02 of the Criminal Code governs the issuance of similar orders, in specified circumstances, requiring a person to provide assistance if it may “reasonably be considered to be required to give effect to the authorization or warrant.” I have previously written on this blog about recent cases in the United States and Canada under these statutes. (See: Apple And The ‘All Writs Act’ dated November 2, 2015; and, Apple and ‘Assistance Orders’ in Canada dated November 8, 2015).

The application asked for three things that were summarized in non-technical language by Joseph Bonneau in a post to the Electronic Frontier Foundation’s blog titled A Technical Perspective on the Apple iPhone Case dated February 19, 2016: “In this case, the FBI is requesting that Apple create and digitally sign a special version of iOS which is modified in three ways:

1. iOS can be set to erase its keys after 10 incorrect passcode guesses. The FBI wants software with this feature disabled.

2. iOS imposes increasingly long delays after consecutive incorrect passcode guesses to slow down guessing (this is commonly called rate limiting). The FBI wants software that accepts an arbitrary number of guesses with no delays.

3. iOS requires individual passcodes be typed in by hand. The FBI wants a means to electronically enter passcodes, allowing it to automatically try every possible code quickly.” (See: Memorandum of Points and Authorities, at p. 8; and, Order Compelling Apple, Inc. To Assist Agents In Search dated February 16, 2016, at para. 2)

Apple was originally given until February 23, 2016, to respond but received an extension to February 26, 2016. A media blizzard then erupted during the intervening week that included announcements by Microsoft, Google, Twitter, Facebook and Yahoo that they will seek to file one or more briefs backing Apple. The FBI joined the escalation by calling on Congress to settle the question of when law enforcement should get access to citizens’ private data. Apple had invited Congress to step in earlier in the week. In a letter to Apple staff, CEO Tim Cook said:

“This case is about much more than a single phone or a single investigation, so when we received the government’s order we knew we had to speak out. At stake is the data security of hundreds of millions of law-abiding people, and setting a dangerous precedent that threatens everyone’s civil liberties.

Some advocates of the government’s order want us to roll back data protections to iOS 7, which we released in September 2013. Starting with iOS 8, we began encrypting data in a way that not even the iPhone itself can read without the user’s passcode, so if it is lost or stolen, our personal data, conversations, financial and health information are far more secure. We all know that turning back the clock on that progress would be a terrible idea.

Our country has always been strongest when we come together. We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology and civil liberties to discuss the implications for law enforcement, national security, privacy and personal freedoms. Apple would gladly participate in such an effort.” (See: Rhiannon Williams. Tim Cook urges FBI reform to respect privacy in letter to staff. The Telegraph. February 22, 2016; and, Katie Benner, Eric Lichtblau and Nick Wingfield. Apple Goes to Court, and F.B.I. Presses Congress to Settle iPhone Privacy Fight. The New York Times. February 25, 2016)

The public debate is not new and is often drawn along the lines of privacy vs. security. FBI Director James Comey recently said this: “We have awesome new technology that creates a serious tension between two values we all treasure: privacy and safety. That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI which investigates for a living.” Mr. Comey argues that increasingly robust encryption technology enables the “going dark” phenomenon that impairs the digital investigative ability of law enforcement. (See: Brian Barrett. The Apple-FBI Fight Isn’t About Privacy vs. Security. Don’t Be Misled. WIRED. February 24, 2016)

Apple claims that what Judge Pym has ordered is tantamount to a “back door” – a loophole built into software that would allow the government to defeat security features. Back doors have been universally criticized by leading security experts because they make programs vulnerable to hackers, repressive government regimes and terrorists. A back door is the equivalent of leaving a key under the doormat and thus undermines the security of millions of Apple’s customers as well as their privacy. It is therefore misleading to consider the debate as a strict trade-off between privacy and security. It is also important to emphasize that, in the case of Farook’s iPhone, the government seeks to put the security of millions of innocent people at risk based on the prospect of getting information from a work iPhone used by a dead man who cannot be prosecuted. (See: Will Oremus. Apple vs. the FBI. Slate. February 17, 2016; and, Harold Abelson et al. Keys Under Doormats: Mandating Insecurity By Requiring Government Access To All Data And Communications (2015) – Schneier on Security)

On February 25, 2016, a day early, Apple filed its Motion To Vacate Order Compelling Apple Inc. To Assist Agents In Search, And Opposition To Government’s Motion To Compel Assistance. The motion is 65 pages long and the Memorandum of Points and Authorities comprises 36 pages. It is worth reading. And, in such a highly technical area, it is surprisingly breezy. Here are some extracts:

• This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe. The government demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance. The All Writs Act, first enacted in 1789 and on which the government bases its entire case, “does not give the district court a roving commission” to conscript and commandeer Apple in this manner. Plum Creek Limber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). In fact, no court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it. (at p. 1)

• Since the dawn of the computer age, there have been malicious people dedicated to breaching security and stealing stored personal information. Indeed, the government itself falls victim to hackers, cyber-criminals, and foreign agents on a regular basis, most famously when foreign hackers breached Office of Personnel Management databases and gained access to personal records, affecting over 22 million current and former federal workers and family members. In the face of this daily siege, Apple is dedicated to enhancing the security of its devices, so that when customers use an iPhone, they can feel confident that their most private personal information – financial records and credit card information, health information, location data, calendars, personal and political beliefs, family photographs, information about their children – will be safe and secure. To this end, Apple uses encryption to protect its customers from cyber-attack and works hard to improve security with every software release because the threats are becoming more frequent and sophisticated. Beginning with iOS 8, Apple added additional security features that incorporate the passcode into the encryption system. It is these protections that the government now seeks to roll back by judicial decree. (at pp. 1-2)

• The government says: “Just this once” and “Just this phone.” But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts. And as news of this Court’s order broke last week, state and local officials publicly declared their intent to use the proposed operating system to open hundreds of other seized devices – in cases having nothing to do with terrorism. If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent. Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote. As Tim Cook, Apple’s CEO, recently noted: “Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks – from restaurants and banks to stores and homes. No reasonable person would find that acceptable.” Declaration of Nicola T. Hanna (“Hanna Decl.”), Ex. D [Apple Inc., A Message to Our Customers (Feb. 16, 2016)]. (at p. 3)

• …[T]he government, led by the Department of Justice, has considered legislative proposals that would have mandated..a back door. Those proposals sought to significantly expand the reach of the Communications Assistance for Law Enforcement Act (“CALEA“), 47 U.S.C. s 1001 et seq., in which Congress defined the circumstances under which private companies must assist law enforcement in executing authorized electronic surveillance and the nature of – and limits on – the assistance such companies must provide. In addressing the twin needs of law enforcement and privacy, Congress, through CALEA, specified when a company has an obligation to assist the government with decryption of communications, and made clear that a company has no obligation to do so where, as here, the company does not retain a copy of the decryption key. 47 U.S.C. s 1002(b)(3). Congress, keenly aware of and focusing on the specific area of dispute here, thus opted not to provide authority to compel companies like Apple to assist law enforcement with respect to data stored on a smartphone they designed and manufactured. (at p. 8)

• The All Writs Act (or the “Act“) does not provide the judiciary with the boundless and unbridled power the government asks this Court to exercise. The Act is intended to enable the federal courts to fill in gaps in the law so they can exercise the authority they already possess by virtue of the express powers granted to them by the Constitution and Congress; it does not grant the courts free-wheeling authority to change the substantive law, resolve policy disputes, or exercise new powers that Congress has not afforded them. Accordingly, the Ninth Circuit has squarely rejected the notion that “the district court has such wide-ranging inherent powers that it can impose a duty on a private party when Congress has failed to impose one. To so rule would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction.” Plum Creek, 608 F.2d at 1290 [Emphasis in original]. (at p. 14)

• Congress has never authorized judges to compel innocent third parties to provide decryption services to the FBI. Indeed, Congress has expressly withheld that authority in other contexts, and this issue is currently the subject of a raging national policy debate among members of Congress, the President, the FBI Director, and state and local prosecutors. Moreover, federal courts themselves have never recognized an inherent authority to order non-parties to become de facto government agents in ongoing criminal investigations. Because the Order is not grounded in any duly enacted rule or statute, and goes well beyond the very limited powers afforded by Article III of the Constituion and the All Writs Act, it must be vacated. (at pp. 14-5)

• The government asks this Court to command Apple to write software that will neutralize safety features that Apple has built into the iPhone in response to consumer privacy concerns…This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment…The Supreme Court has made clear that where, as here, the government seeks to compel speech, such action triggers First Amendment protections. As the Court observed in Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988), while “[t]here is certainly some difference between compelled speech and compelled silence, …in the context of protected speech, the difference is without constitutional significance. Compelled speech is a content-based restriction subject to exacting scrutiny, id. at 795, 797-98, and so may only be upheld if it is narrowly tailored to obtain a compelling state interest, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 622 (1994). The government cannot meet this standard here. (at pp. 32-3)

• In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “arbitrary deprivation of [its] liberty by government.” [Fifth Amendment Due Process Clause] Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’… [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted); cf. id. at 850 (“Rules of due process are not…subject to mechanical application in unfamiliar territory.”). (at p. 34)

The thrust of Apple’s motion to vacate is grounded mainly in the attack on the All Writs Act. If Apple succeeds on that argument, it would not be necessary for Judge Pym to decide the First Amendment and Fifth Amendment questions. A significant part of the argument also addresses the issue of “burdensomeness” that, “…compelling Apple to create software in this case will set a dangerous precedent for conscripting Apple and other technology companies to develop technology to do the government’s bidding in untold future investigations.” (at pp. 23-9) (See also: Danny Yadron, Spencer Ackerman and Sam Thielman. Apple accuses FBI of violating constitutional rights in iPhone battle. The Guardian. February 25, 2016)

The motion to vacate is scheduled for hearing on March 22, 2016.