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Attorneys

Apple Argues It Should Not Be Compelled to Write Software for the F.B.I.

March 11 2016

By: Eric Caligiuri

On February 16, 2016, Magistrate Judge Sheri Pym in the United States District Court for the Central District of California issued an order compelling Apple, Inc. to provide technical assistance to the F.B.I. so it can access an iPhone 5C that belonged to a shooter in the recent San Bernardino, California attack.

The order, which issued without obtaining Apple’s initial input, requires Apple to write new software and take other measures to disable passcode protection on the attacker’s iPhone. The court issued the order under 28 U.S.C. § 1651, the “All Writs Act,” which authorizes the United States 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 order also allowed Apple to make a request to the court for relief from compliance with the order if such compliance would be unreasonably burdensome. Apple made this request via a motion to vacate the order on February 25, 2016. In its motion to vacate the order, Apple raises three general arguments.

First, Apple argues that the relief the government seeks is not justified under an extension of the All Writs Act because law enforcement assistance by technology providers is already addressed by existing laws that specifically omit providers like Apple from their scope. Apple argues the Communications Assistance for Law Enforcement Act (“CALEA”), 47 U.S.C. § 1001 et seq., specifies when private companies must assist law enforcement in the decryption of electronic communications obtained during surveillance, and the nature of the assistance such companies must provide. Specifically, under CALEA a company has no obligation to assist law enforcement where the company does not retain a copy of the decryption key, which Apple says it does not have in this case. Thus, Apple asserts that Congress opted not to provide courts with the authority to compel companies like Apple to assist law enforcement in cases such as this one where Apple designed and manufactured the device but did not retain a decryption key. Therefore, Apple says the government’s attempt to use the All Writs Act to expand the obligations imposed by CALEA is improper and violates the separation of powers doctrine.

Second, Apple argues the Supreme Court’s decision in United States v. New York Telephone Co., relied upon by the government, does not apply. In New York Telephone Co., the Supreme Court held that an order under the All Writs Act was proper because it was consistent with Congress’s intent to compel third parties to assist the government in the use of surveillance devices, and it satisfied a three-part test imposed by the Court. Here, however, Apple argues it does not satisfy the three-part test. Apple says nothing connects it to the case such that Apple could be ordered to help the government because Apple is a private company that does not own or possess the phone at issue, Apple has no connection to the data that may or may not exist on the phone, and Apple is not related in any way to the events giving rise to the investigation. Further, Apple argues the order would impose an oppressive burden on Apple and those who use an iPhone because the order would require Apple to develop new software that destroys the security features that Apple has spent years building. In addition, Apple argues the government failed to demonstrate that the requested order was necessary because, without consulting Apple or reviewing its public guidance regarding iOS, the government changed the iCloud password associated with the attacker’s account, thereby preventing the phone from initiating an automatic iCloud back-up.

Third, Apple argues the order would violate both the First Amendment’s right to freedom of speech and the Fifth Amendment’s due process clause. As to the First Amendment, Apple asserts computer code is treated as speech within the meaning of the First Amendment and the order seeks to compel Apple to write new software that advances views contrary to its position on data security and the privacy of citizens. As to the Fifth Amendment, Apple argues that conscripting a private party, with a limited connection to the crime, to do the government’s work violates Apple’s substantive due process right to be free from arbitrary deprivation of its liberty.

In addition to Apple, numerous third-parties have filed amicus briefs on all sides of the debate, raising various issues. These issues range from arguments that back doors would weaken technology companies’ ability to protect their customers’ information, which would put customers at heightened risk of being hacked, to arguments that the use of outdated rules improperly expands government power without Congress’ approval. On the other side, some argue this is an isolated incident involving a single iPhone and access to this particular iPhone is necessary to keep Americans safe from future attacks.

The parties are expected back in court on March 22, 2016, when the court may entertain further oral argument on the issues.