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THEODORE J. BOUTROUS JR., SBN 132099
tboutrous@gibsondunn.com
NICOLA T. HANNA, SBN 130694
nhanna@gibsondunn.com
ERIC D. VANDEVELDE, SBN 240699
evandevelde@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: 213.229.7000
Facsimile: 213.229.7520
THEODORE B. OLSON, SBN 38137
tolson@gibsondunn.com
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC, 20036-5306
Telephone: 202.955.8500
Facsimile: 202.467.0539
MARC J. ZWILLINGER*
marc@zwillgen.com
JEFFREY G. LANDIS*
jeff@zwillgen.com
ZWILLGEN PLLC
1900 M Street N.W., Suite 250
Washington, DC 20036
Telephone: 202.706.5202
Facsimile: 202.706.5298
*Admitted Pro Hac Vice
Attorneys for Apple Inc.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION
IN THE MATTER OF THE SEARCH
OF AN APPLE IPHONE SEIZED
DURING THE EXECUTION OF A
SEARCH WARRANT ON A BLACK
LEXUS IS300, CALIFORNIA
LICENSE PLATE 35KGD203
ED No. CM 16-10 (SP)
APPLE INC.’S REPLY TO
GOVERNMENT’S OPPOSITION TO
APPLE INC.’S MOTION TO VACATE
ORDER COMPELLING APPLE INC.
TO ASSIST AGENTS IN SEARCH
Hearing:
Date: March 22, 2016
Time: 1:00 p.m.
Place: Courtroom 3 or 4
Judge: Hon. Sheri Pym
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Apple Inc. (“Apple”), by and through its counsel of record, hereby files this
Reply to the Government’s Opposition to Apple’s Motion to Vacate the Order
Compelling Apple Inc. to Assist Agents in Search.
This reply is based upon the attached memorandum of points and authorities, the
declarations of Nicola T. Hanna, Craig Federighi, Erik Neuenschwander, and Robert
Ferrini filed concurrently herewith, the files and records in this case, and such further
evidence and argument as the Court may permit.
Dated: March 15, 2016 Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
By: /s/ Theodore J. Boutrous, Jr.
Theodore J. Boutrous, Jr.
Theodore J. Boutrous, Jr.
Nicola T. Hanna
Eric D. Vandevelde
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: 213.229.7000
Facsimile: 213.229.7520
Theodore B. Olson
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, DC, 20036-5306
Telephone: 202.955.8500
Facsimile: 202.467.0539
Marc J. Zwillinger *
Jeffrey G. Landis *
ZwillGen PLLC
1900 M Street N.W., Suite 250
Washington, DC 20036
Telephone: 202.706.5202
Facsimile: 202.706.5298
*Admitted Pro Hac Vice
Attorneys for Apple Inc.
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TABLE OF CONTENTS
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I. INTRODUCTION ................................................................................................. 1
II. ARGUMENT ......................................................................................................... 3
A. The Government Misconceives The All Writs Act’s Scope And
Purpose. ....................................................................................................... 3
B. The Government Cannot Invoke The All Writs Act Here. ......................... 7
1. The Government Cannot Use The Act To Circumvent
CALEA. ............................................................................................ 7
2. Congress Refused To Grant The Power The Government
Seeks. .............................................................................................. 11
C. New York Telephone And Its Progeny Do Not Authorize The Order. ..... 13
1. Apple Is Far Removed From This Matter. ...................................... 14
2. The Order Would Impose Unprecedented And Offensive
Burdens. .......................................................................................... 15
3. The Government Has Not Demonstrated Necessity. ...................... 21
D. The Order Would Violate The First Amendment And Due Process
Clause. ....................................................................................................... 22
III. CONCLUSION ................................................................................................... 25
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Cases
Application of the U.S. for an Order Authorizing an In-Progress Trace of
Wire Commc’ns over Tel. Facilities (Mountain Bell),
616 F.2d 1122, 1132–33 (9th Cir. 1980)................................................................. 15
Application of the U.S. for an Order Authorizing the Installation of a Pen
Register or Touch-Tone Decoder and a Terminating Trap (Penn Bell),
610 F.2d 1148 (3d. Cir. 1979) ........................................................................... 15, 16
Application of the U.S. for an Order Directing X to Provide Access to
Videotapes,
2003 WL 22053105 (D. Md. Aug. 22, 2003) ......................................................... 15
Application of the U.S. for an Order,
349 F.3d 1132 (9th Cir. 2003) ................................................................................... 8
Baker v. Carr,
369 U.S. 186 (1962) .................................................................................................. 7
Bank of the U.S. v. Halstead,
23 U.S. (10 Wheat.) 51 (1825) .............................................................................. 4, 5
Barndt v. County of Los Angeles,
211 Cal. App. 3d 397 (1989) ..................................................................................... 5
Beers v. Haughton,
34 U.S. (9 Pet.) 329 (1835) ....................................................................................... 5
Bob Jones Univ. v. United States,
461 U.S. 574 (1983) .......................................................................................... 11, 13
Clinton v. Goldsmith,
526 U.S. 529 (1999) .................................................................................................. 4
Company v. United States,
349 F.3d 1132 (9th Cir. 2003) ................................................................................... 6
FTC v. Dean Foods Co.,
384 U.S. 597 (1966) .......................................................................................... 12, 13
Garland v. Sullivan,
737 F.2d 1283 (3d Cir. 1984) .................................................................................. 13
Gonzalez v. Google,
234 F.R.D. 674 (N.D. Cal. 2006) ............................................................................ 16
Harris v. Nelson,
394 U.S. 286 (1969) .................................................................................................. 4
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In re Apple, Inc.,
-- F. Supp. 3d --, 2016 WL 783565 (E.D.N.Y. Feb. 29, 2016) ........................... 3, 17
In re Warrant to Search a Target Computer at Premises Unknown,
958 F. Supp. 2d 753 (S.D. Tex. 2013) ...................................................................... 6
Ivey v. Harney,
47 F.3d 181 (7th Cir. 1995) ......................................................................... 4, 5, 6, 16
Lowery v. McCaughtry,
954 F.2d 422 (7th Cir. 1992) ..................................................................................... 3
Marble Co. v. Ripley,
77 U.S. (10 Wall) 339 (1870).................................................................................... 6
Nat’l Fed’n of Indep. Bus. v. Sebelius,
132 S. Ct. 2566 (2012) ............................................................................................ 25
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ............................................................................................ 25
Olmstead v. United States,
277 U.S. 438 (1928) ................................................................................................ 25
P.R. Dep’t of Consumer Affairs v. Isla Petroleum Corp.,
485 U.S. 495 (1988) .......................................................................................... 11, 13
Pa. Bureau of Corr. v. U.S. Marshals Serv.,
474 U.S. 34 (1985) .................................................................................................... 4
Plum Creek Lumber Co. v. Hutton,
608 F.2d 1283 (9th Cir. 1979) ......................................................................... 1, 3, 18
Poultry Producers of S. Cal., Inc. v. Barlow,
189 Cal. 278 (1922) ................................................................................................... 6
Price v. Johnston,
334 U.S. 266 (1948) .................................................................................................. 5
Quon v. Arch Wireless Operating Co.,
529 F.3d 892 (9th Cir. 2008) ..................................................................................... 8
Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
487 U.S. 781 (1988) ................................................................................................ 24
Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819 (1995) ................................................................................................ 24
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc.,
547 U.S. 47 (2006) .................................................................................................. 24
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Trenkler v. United States,
536 F.3d 85 (1st Cir. 2008) ..................................................................................... 13
United States v. Burr,
25 F. Cas. 38 (C.C.D. Va. 1807) (No. 14692E) ........................................................ 4
United States v. Craft,
535 U.S. 274 (2002) ................................................................................................ 13
United States v. Elcom, Ltd.,
203 F. Supp. 2d 1111 (N.D. Cal. 2002) .................................................................. 23
United States v. Fricosu,
841 F. Supp. 2d 1232 (D. Colo. 2012) .................................................................... 15
United States v. Hall,
583 F. Supp. 717 (E.D . Va. 1984) .......................................................................... 15
United States v. Hayman,
342 U.S. 205 (1952) .................................................................................................. 3
United States v. Koyomejian,
970 F.2d 536 (9th Cir. 1992) ..................................................................................... 7
United States v. New York Tel. Co.,
434 U.S. 159 (1977) ............................................................ 10, 13, 14, 17, 22, 23, 24
Universal City Studios, Inc. v. Corley,
273 F.3d 429 (2d Cir. 2001) .................................................................................... 23
Universal City Studios, Inc. v. Reimerdes,
111 F. Supp. 2d 294 (S.D.N.Y. 2000) ..................................................................... 23
Vieth v. Jubelirer,
541 U.S. 267 (2004) .................................................................................................. 7
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ................................................................................................ 12
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Statutes
18 U.S.C. § 2510(15) ........................................................................................................ 9
18 U.S.C. § 2511(2)(a)(ii) ............................................................................................... 13
18 U.S.C. § 2518(4) ........................................................................................................ 13
18 U.S.C. § 2701 ....................................................................................................... 12, 13
18 U.S.C. § 2703 ............................................................................................................. 12
18 U.S.C. § 3123(b)(2) ................................................................................................... 13
28 U.S.C. § 1651(a) .......................................................................................................... 2
47 U.S.C. § 1001 ......................................................................................................... 9, 11
47 U.S.C. § 1002 ................................................................................................... 9, 10, 11
Other Authorities
H.R. Rep. No. 103-827(I) ............................................................................................... 13
John W. Kyle, Nature and Origin of Writs Under the Common Law,
24 Miss. L.J. 1 (1952) ............................................................................................... 3
Restatement (Second) of Contracts § 367(1) .................................................................... 6
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
The Justice Department and FBI are seeking an order from this Court that would
force Apple to create exactly the kind of operating system that Congress has thus far
refused to require. They are asking this Court to resolve a policy and political issue that
is dividing various agencies of the Executive Branch as well as Congress. This Court
should reject that request, because the All Writs Act does not authorize such relief, and
the Constitution forbids it.1
The All Writs Act cannot be stretched to fit this case because to do so “would be
to usurp the legislative function and to improperly extend the limited federal court
jurisdiction.” Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1290 (9th Cir. 1979).
The government attempts to rewrite history by portraying the Act as an all-powerful
magic wand rather than the limited procedural tool it is. As theorized by the
government, the Act can authorize any and all relief except in two situations: (1) where
Congress enacts a specific statute prohibiting the precise action (i.e., says a court may
not “order a smartphone manufacturer to remove barriers to accessing stored data on a
particular smartphone,” Opp. 11), or (2) where the government seeks to “arbitrarily
dragoon[]” or “forcibly deputize[]” “random citizens” off the street. Opp. 5, 16. Thus,
according to the government, short of kidnapping or breaking an express law, the courts
can order private parties to do virtually anything the Justice Department and FBI can
dream up. The Founders would be appalled.
Furthermore, the Justice Department and FBI argue that this Court must decide
the issue in a vacuum, without regard to either the swirling national debate about
1 The government’s brief assails Apple’s intentions and motivations. We do not
intend to respond in kind. As FBI Director Comey testified, “there are no demons
[here].” Ex. EE at 11 [FBI Director James Comey, Encryption Tightrope: Balancing
Americans’ Security and Privacy, Hearing on Encryption Security and Privacy
Before the H. Comm. on the Judiciary (Mar. 1, 2016) (“Encryption Hr’g”)]. Our
goal is to focus on the facts and law. (Unless otherwise indicated, all referenced
exhibits are attached to the Supplemental Declaration of Nicola T. Hanna filed
concurrently herewith.)
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mandating a back door or the dangers to the security and privacy of millions of citizens
posed by the relief they seek on behalf of the United States. But to determine whether
this is an issue capable of judicial resolution under the All Writs Act and the
Constitution, the Court not only can consider this broader context, it must do so.
Indeed, the Justice Department and FBI are asking this Court to adopt their position
even though numerous current and former national security and intelligence officials
flatly disagree with them. See, e.g., Ex. FF [Spencer Ackerman & Danny Yadron, US
Defense Chief Tells Silicon Valley: “Encryption Is Essential,” Guardian (Mar. 2, 2016)]
(quoting Defense Secretary Ashton Carter: “[D]ata security, including encryption, is
absolutely essential to us. . . . I’m not a believer in backdoors . . . .”); Ex. GG [Michael
D. Shear & David E. Sanger, Competing Interests on Encryption Divide Top Obama
Officials, N.Y. Times (Mar. 5, 2016)] (“Driven by competing and sometimes clashing
interests about privacy, national security and the economy, some of the president’s most
senior aides are staking out a variety of positions on the issue.”); Ex. HH [Tom
DiChristopher, US Safer with Fully Encrypted Phones, CNBC (Feb. 23, 2016)] (quoting
former NSA and CIA Director Michael Hayden: “America is more secure—America is
more safe—with unbreakable end-to-end encryption.”).
It has become crystal clear that this case is not about a “modest” order and a
“single iPhone,” Opp. 1, as the FBI Director himself admitted when testifying before
Congress two weeks ago. Ex. EE at 35 [FBI Director James Comey, Encryption Hr’g]
(“[T]he broader question we’re talking about here goes far beyond phones or far beyond
any case. This collision between public safety and privacy—the courts cannot resolve
that.”). Instead, this case hinges on a contentious policy issue about how society should
weigh what law enforcement officials want against the widespread repercussions and
serious risks their demands would create. “Democracies resolve such tensions through
robust debate” among the people and their elected representatives, Dkt. 16-8 [Comey,
Going Dark], not through an unprecedented All Writs Act proceeding.
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This case arises in a difficult context after a terrible tragedy. But it is in just such
highly-charged and emotional cases that the courts must zealously guard civil liberties
and the rule of law and reject government overreaching. This Court should therefore
deny the government’s request and vacate the order.
II. ARGUMENT
A. The Government Misconceives The All Writs Act’s Scope And Purpose.
The government portrays the All Writs Act as a “broad,” “venerable,” “fluid,”
“adaptable” font of virtually unlimited authority empowering courts to issue any and all
orders that the government requests in the pursuit of “justice.” Opp. 3–5. As the
government tells it, courts can wield the “flexible power” conferred by the Act until
“Congress expressly takes it away.” Opp. 10. This is an exercise in wishful thinking,
not statutory interpretation.
The Act authorizes courts to issue “all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a). The Act’s reference to “writs” “agreeable to the usages and
principles of law” refers to “traditional writs that have not been altered or abolished by
some other statute.” Lowery v. McCaughtry, 954 F.2d 422, 423 (7th Cir. 1992). “In
determining what auxiliary writs are ‘agreeable to the usages and principles of law,’ [the
Court] look[s] first to the common law.” United States v. Hayman, 342 U.S. 205, 221
n.35 (1952); see also John W. Kyle, Nature and Origin of Writs Under the Common
Law, 24 Miss. L.J. 1, 1 (1952) (“Practically all of the writs which are now in use in
England and America have a common law origin.”).
Because the Act is grounded in the common law, it is “not a grant of plenary
power to the federal courts.” Plum Creek Lumber Co., 608 F.2d at 1289. Nor does the
Act “give the district court a roving commission” to order private parties to assist the
government. Id. Rather, it “function[s] as a ‘gap filler,’” In re Apple, Inc., -- F. Supp.
3d --, 2016 WL 783565, at *8 (E.D.N.Y. Feb. 29, 2016), that “suppl[ies] the courts with
the instruments needed to perform their duty,” Harris v. Nelson, 394 U.S. 286, 300
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(1969). For example, Congress has authorized courts to issue “the writ of habeas
corpus ad testificandum,” such that a “court may direct the custodian to produce the
prisoner in court as a witness.” Ivey v. Harney, 47 F.3d 181, 183 (7th Cir. 1995). But
“[w]hat happens if the testimony takes two days? Where does the prisoner stay
overnight? . . . The statute does not say; neither, however, does it subtract from the
court’s common law powers to control such details.” Id. The Act would fill such a gap
as a “residual source of authority” authorizing the court “to issue writs that are not
otherwise covered by [the] statute.” Clinton v. Goldsmith, 526 U.S. 529, 537–38 (1999)
(citation omitted). However, the Act “does not authorize [courts] to issue ad hoc writs
whenever compliance with statutory procedures appears inconvenient or less
appropriate.” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).
The government seeks an order here that is neither grounded in the common law
nor authorized by statute. Indeed, the government has not pointed to any writ available
at common law that would require a private non-party to perform burdensome forensics
work, create new software, or compel speech to assist law enforcement.2 The
government misquotes Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51
(1825), for the proposition that “‘[t]he operation of [the Act]’” should not be limited
“‘to that which it would have had in the year 1789.’” Opp. 3 (misquoting Halstead, 23
U.S. (10 Wheat.) at 62) (alterations are the government’s). But what the Court actually
said was that the “operation of an execution”—the ancient common law writ of
“venditioni exponas”—is not limited to that “which it would have had in the year 1789.”
23 U.S. (10 Wheat.) at 62 (emphasis added); see also id. at 55 (“That executions are
2 The government contends that Chief Justice Marshall once ordered a third party to
“provide decryption services” to the government. Opp. 20 (citing United States v.
Burr, 25 F. Cas. 38 (C.C.D. Va. 1807) (No. 14692E)). He did nothing of the sort,
and the All Writs Act was not even at issue in Burr. In that case, Aaron Burr’s
secretary declined to state whether he “understood” the contents of a certain letter
written in cipher, on the ground that he might incriminate himself. 25 F. Cas. at 39.
The Court held that the clerk’s answer as to whether he understood the cipher could
not incriminate him, and the Court thus held that “the witness may answer the
question now propounded”—i.e., whether he understood the letter. Id. at 40. The
Court did not require the clerk to decipher the letter.
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among the writs hereby authorized to be issued, cannot admit of a doubt . . . .”). The
narrow holding of Halstead was that the Act (and the Process Act of 1792) allowed
courts “to alter the form of the process of execution.” Id. at 54–55 (emphasis added)
(courts are not limited to the form of the writ of execution “in use in the Supreme Courts
of the several States in the year 1789”). The limited “power given to the Courts over
their process is no more than authorizing them to regulate and direct the conduct of the
Marshal, in the execution of the process.” Id. at 61; cf. Beers v. Haughton, 34 U.S. (9
Pet.) 329, 359–60 (1835).
The authority to alter the process by which courts issue traditional common law
writs is not authority to invent entirely new writs with no common law analog.3 But that
is precisely what the government is asking this Court to do: The Order requiring Apple
to create software so that the FBI can hack into the iPhone has no common law analog.
See Ivey, 47 F.3d at 185 (reversing order issued under the All Writs Act because
“[n]othing in the common law supports an order directing a third party to provide free
services that facilitate litigation”). Indeed, the Order is akin to an injunction directing
specific performance of a personal services contract, a remedy the common law
specifically disfavored. See Barndt v. County of Los Angeles, 211 Cal. App. 3d 397,
403-04 (1989) (“It has long been established that a contract to perform personal services
cannot be specifically enforced . . . .”) (citing Poultry Producers of S. Cal., Inc. v.
3 The government’s reliance on Price v. Johnston, 334 U.S. 266 (1948) (Opp. 4), is
equally misplaced. Like Halstead, Price involved the form of a foundational
common law writ—the writ of habeas corpus. 334 U.S. at 269. The Court
recognized that the federal courts, “in issuing a writ of habeas corpus . . . [are not]
necessarily confined to the precise forms of that writ in vogue at the common law or
in the English judicial system.” Id. at 282 (emphasis added). The Court thus held
that the Act gave a court of appeals the power “to command that a prisoner be
brought before it so that he may argue his own appeal in a case involving his life or
liberty,” even though the habeas writ had not been used for that particular purpose at
common law. Id. at 278, 281-82. The Court’s statement that the term “law” is
“unlimited by the common law or the English law” referred only to the form of the
writ of habeas corpus. Id. at 282 (“[W]e do not believe that the forms of the habeas
corpus writ authorized by [the All Writs Act] are only those recognized in this
country in 1789.”) (emphasis added). The Court did not suggest that the Act
provides authority to make new law or invent new writs.
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Barlow, 189 Cal. 278, 288 (1922)); see also Restatement (Second) of Contracts § 367(1)
(“A promise to render personal service will not be specifically enforced.”). Courts have
been especially reluctant to order specific performance where, as here, the “duties” of
the performing party “involve skill, personal labor, and cultivated judgment.” Marble
Co. v. Ripley, 77 U.S. (10 Wall.) 339, 358 (1870).
The government nevertheless contends that because this Court issued a valid
search warrant, it can order innocent third parties to provide any service the government
deems “necessary” or “appropriate” to accomplish the search. Opp. 5. But that “broad”
and “flexible” theory of the All Writs Act has no limiting principle. See Ivey, 47 F.3d at
185 (considering several “hypothetical parallel[s]” showing that petitioner’s reading of
the Act would allow the court to issue any number of orders not allowed at common
law). Indeed, it is telling that the government fails even to confront the hypotheticals
posed to it (e.g., compelling a pharmaceutical company to manufacture lethal injection
drugs, Dkt. 16 (“Mot.”) at 26), or explain how there is any conceivable daylight
between GovtOS today, and LocationTrackingOS and EavesdropOS tomorrow.4
Finally, the government sidesteps limitations imposed by the political question
doctrine by assailing a strawman (Opp. 7–8), ignoring governing law and salient facts.
First, the government cites case law reciting “the general rule” (which Apple does not
dispute) “that ‘the Judiciary has a responsibility to decide cases properly before it’”
(Opp. 7 (citations omitted)) without explaining why this case is “properly before [the
court]” within the meaning of the cited precedents. The government then conspicuously
omits any mention of five of the six political question factors, asserting only that,
generally, “‘judicially discoverable and manageable standards’” exist here because
4 The government is adept at devising new surveillance techniques. See, e.g., In re
Warrant to Search a Target Computer at Premises Unknown, 958 F. Supp. 2d 753,
755 (S.D. Tex. 2013) (rejecting government’s attempt to “hack” a computer to
“surreptitiously install[] software designed . . . to generate user photographs and
location information over a 30 day period”); Company v. United States, 349 F.3d
1132 (9th Cir. 2003) (rejecting government’s attempt to use vehicle’s OnStar system
as bugging device).
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“AWA standards” have long been litigated. Opp. 7–8 (quoting Baker v. Carr, 369 U.S.
186, 217 (1962)). But Supreme Court precedent makes clear that the mere fact that
courts have discerned manageable standards to provide relief under a given law in the
past—in response to distinct claims and under distinct circumstances—is not dispositive
of the judicial manageability of all future claims seeking relief under the same law.5
And as the Chairman of the House Judiciary Committee has recognized, “[i]t is clear
that [this case] illustrate[s] . . . [a] dynamic policy question . . . that is too complex to be
left to the courts and must be answered by Congress.” Ex. EE at 3 [Encryption Hr’g].
B. The Government Cannot Invoke The All Writs Act Here.
1. The Government Cannot Use The Act To Circumvent CALEA.
The government seeks authority that Congress has expressly and impliedly
rejected through CALEA, 47 U.S.C. § 1001 et seq. CALEA defines the circumstances
under which private companies must create systems to assist law enforcement in its
investigatory efforts, as well as the circumstances where such providers are not and
cannot be required to build programs and systems to enable law enforcement access.6
Contrary to the government’s assertion that its request merely “brush[es] up against
similar issues” to CALEA (Opp. 11), CALEA, in fact, has three critical limitations—
two of which the government ignores entirely—that preclude the relief the government
5 The Supreme Court has held, for instance, that “no judicially discernible and
manageable standards” existed to decide a gerrymandering claim asserted on
particular facts under 42 U.S.C. § 1983 and the Fourteenth Amendment, Vieth v.
Jubelirer, 541 U.S. 267, 281 (2004), even though the Court had previously held in
Baker—where plaintiffs invoked the same provisions—that “[j]udicial standards
under the Equal Protection Clause are well developed and familiar,” 369 U.S. at 226.
See also Vieth, 541 U.S. at 311 (Kennedy, J., concurring).
6 In the face of CALEA, the government claims that “a distinct area of law should not
‘curtail[] the government’s powers in domestic law enforcement’ under the AWA,”
quoting United States v. Koyomejian, 970 F.2d 536, 542 (9th Cir. 1992) (en banc).
Opp. 11 (emphasis added). This misleading juxtaposition of a quote from
Koyomejian with the government’s words—“under the AWA”—makes it seem as if
the Ninth Circuit applied the All Writs Act, when it did not. See 970 F.2d at 542
(holding that since the Foreign Intelligence Surveillance Act does not regulate silent
domestic video surveillance, such surveillance need only be authorized under Fed. R.
Crim. P. 41 and consistent with the Fourth Amendment).
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seeks. Mot. 15–19. First, CALEA prohibits law enforcement agencies from requiring
“electronic communication service” providers to adopt “any specific design of
equipment, facilities, services, features, or system configurations . . . .” 47
U.S.C. § 1002(b)(1)(A). The term “electronic communication service” provider is
broadly defined to encompass Apple. Id. § 1001(1) (incorporating the definitions set
forth in 18 U.S.C. § 2510); 18 U.S.C. § 2510(15) (“any service which provides to users
thereof the ability to send or receive wire or electronic communications”). Apple is an
“electronic communication services” provider for purposes of the very services at issue
here because Apple’s software allows users to “send or receive . . . communications”
between iPhones through features such as iMessage and Mail. See Quon v. Arch
Wireless Operating Co., 529 F.3d 892, 901 (9th Cir. 2008) (providers of text messaging
and email services are electronic communication service providers) rev’d on other
grounds, City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010) ; see also Application of
the U.S. for an Order, 349 F.3d 1132, 1138–41 (9th Cir. 2003) (entity is electronic
communication service provider even if it depends on another, such as telephone
company, for ability to provide services).
The government acknowledges that FaceTime and iMessage are electronic
communication services, but asserts that this fact is irrelevant because “the Court’s
order does not bear at all upon the operation of those programs.” Opp. 12 n.3. Not so.
The passcode Apple is being asked to circumvent is a feature of the same Apple iOS
that runs FaceTime, iMessage, and Mail, because an integral part of providing those
services is enabling the phone’s owner to password-protect the private information
contained within those communications.7 More importantly, the very communications
to which law enforcement seeks access are the iMessage communications stored on the
phone. See Dkt. 1 [Gov’t Mot. to Compel] at 1. And, only a few pages after asserting
7 The government’s assertion that the order does not dictate “any specific design,”
Opp. 12 (quoting 47 U.S.C. § 1002(b)(1)), is baseless given that the order commands
Apple to design specific new software with specific capabilities.
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that “the Court’s order does not bear at all upon the operation of” FaceTime and
iMessage for purposes of the CALEA analysis (Opp. 12 n.3), the government spends
several pages seeking to justify the Court’s order based on those very same programs,
arguing that they render Apple “intimately close” to the crime for purposes of the New
York Telephone analysis. Opp. 16.
Second, the government does not dispute, or even discuss, that CALEA excludes
“information services” providers from the scope of its mandatory assistance provisions.
47 U.S.C. § 1002(b)(2). Apple is indisputably an information services provider given
the features of iOS, including Facetime, iMessage, and Mail. Opp. 14–16; Mot. 17 &
n.23; 47 U.S.C. § 1001(6)(B)(i) (information services include “electronic messaging
services” and services that “permit[] a customer to retrieve stored information from, or
file information for storage in, information storage facilities”). And the “information
services” provided by Apple are not limited to those specific person-to-person
communications, but also include the system updates and status communications
highlighted by the government. Opp. 14–15. CALEA therefore forbids requiring
information services providers like Apple to configure their systems so as to give law
enforcement access to its information services—in real-time or after such
communications are stored on the device.
Finally, CALEA makes clear that even telecommunications carriers (a category of
providers subject to more intrusive requirements under CALEA, but which Apple is not)
cannot be required to “ensure the government’s ability” to decrypt or to create
decryption programs the company does not already “possess.”8 47 U.S.C. § 1002(b)(3).
If companies subject to CALEA’s obligations cannot be required to bear this burden,
8 Carriers “shall not be responsible for decrypting, or ensuring the government’s
ability to decrypt, any communication encrypted by a subscriber or customer, unless
the encryption was provided by the carrier and the carrier possesses the information
necessary to decrypt the communication.” 47 U.S.C. § 1002(b)(3) (emphases
added).
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Congress surely did not intend to allow parties specifically exempted by CALEA (such
as Apple) to be subjected to it. The government fails to address this truism.
CALEA’s legislative history makes clear the sound policy reasons behind its
specific limitations on when decryption services can be required. During congressional
hearings on CALEA, then-FBI director Louis Freeh assured Senator Leahy that CALEA
would not impede the growth of new technologies. When Senator Leahy asked whether
CALEA would inhibit the growth of encryption, he responded “this legislation does not
ask [companies] to decrypt. It just tells them to give us the bits as they have them. If
they are [en]crypted, that is my problem.” Ex. II at 4 [Digital Telephony and Law
Enforcement Access to Advanced Telecommunications Technologies and Services: Joint
Hearings on H.R. 4922 and S. 2375, 103d Cong. 11 (1994)]. Congress thus considered
shifting to third parties like Apple the very burden the government now asks this Court
to impose, but it declined, knowing full well this meant there would be some
communications that law enforcement could not access (and that developing the ability
to access them would be “[the government’s] problem,” see id.). Neither the All Writs
Act nor any case interpreting it allows the Court to issue an order that directly conflicts
with this clear statutory prohibition. See United States v. New York Tel. Co., 434 U.S.
159, 176 (1977) (relying on the fact that the proposed action was “consistent with . . .
recent congressional actions”).9 Thus, even under the government’s own (incorrect)
view of the Act’s authority, the relief the government seeks here is barred because
Congress has prohibited it through a specific statute.
9 The Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., specifically
establishes when governmental entities can require providers of electronic
communications and remote computing services to produce stored content to the
government. The government can require such production when the content is “held
or maintained on that service” or “in electronic storage” by the provider. Id.
§ 2703(a), (b). Neither prong applies to stored communications on the subject
iPhone, as they are in the government’s possession and not Apple’s, and the SCA
does not mandate decryption of communications that are not in Apple’s possession.
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2. Congress Refused To Grant The Power The Government Seeks.
The government wrongly asserts that legislative intent can never be discerned
from an absence of affirmative legislation. Opp. 8–10. Although silence is sometimes a
weak indicator of intent, it is a different story when Congress actively considers
legislation to address a major policy issue, yet deliberately declines to enact it, see, e.g.,
Bob Jones Univ. v. United States, 461 U.S. 574, 600 (1983) (Congress’s “non-action” in
the face of IRS opinions justified the inference that Congress agreed with those
opinions), especially in the context of an elaborate and comprehensive statutory scheme,
P.R. Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988)
(“Where a comprehensive federal scheme intentionally leaves a portion of the regulated
field without controls, then preemptive inference can be drawn—not from federal
inaction alone, but from inaction joined with action.”).
Here, Congress chose to require limited third-party assistance in certain statutes
designed to aid law enforcement in gathering electronic evidence (although none as
expansive as what the government seeks here),10 but it has declined to include similar
provisions in other statutes, despite vigorous lobbying by law enforcement and
notwithstanding its “prolonged and acute awareness of so important an issue” as the one
presented here. Bob Jones, 461 U.S. at 601. Accordingly, the lack of statutory
authorization in CALEA or any of the complementary statutes in the “comprehensive
federal scheme” of surveillance and telecommunications law speaks volumes. Isla
Petroleum, 485 U.S. at 503. To that end, Congress chose to “greatly narrow[]” the
“scope of [CALEA],” which ran contrary to the FBI’s interests but was “important from
a privacy standpoint.” H.R. Rep. No. 103-827(I), at 18 (1994), as reprinted in 1994
U.S.C.C.A.N. 3489, 3498. Indeed, CALEA’s provisions were drafted to “limit[] the
scope of [industry’s] assistance requirements in several important ways.” Id. at 23,
10 In addition to CALEA, the Wiretap Act, 18 U.S.C. § 2518(4), the Pen/Trap Statute,
id. § 3123(b)(2), the Electronic Communications Privacy Act (“ECPA”), id. §
2511(2)(a)(ii), and the SCA, id. § 2701, all specify circumstances in which a third
party may be required to produce information to or assist law enforcement.
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1994 U.S.C.C.A.N. at 3503. As the Ranking Member of the House Judiciary
Committee recently put it:
[F]or years . . . the Department of Justice and the [FBI] have urged this
committee to give them the authority to mandate that companies create
backdoors into their secure products[,] . . . [but] this committee, this Congress
and the administration have so far refused to provide [that authority].
Ex. EE at 5 [Rep. Conyers, Encryption Hr’g].
That the Executive Branch recently abandoned plans to seek legislation
expanding CALEA’s reach (see Mot. 9) provides renewed confirmation that Congress
has not acceded to the FBI’s wishes, and belies the government’s view that it has
possessed such authority under the All Writs Act since 1789.11
Although the Administration is free to keep its powder dry for future lobbying
efforts, the Constitution does not give the Executive Branch the “option” of asking the
courts to rewrite CALEA. As demonstrated, CALEA’s prohibition on the type of
assistance the FBI seeks here is neither “hypothetical nor abstract” (Opp. 6), and this
Court should decline the government’s invitation to violate the separation of powers by
usurping Congress’s “exclusive constitutional authority to make laws.” Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588–89 (1952).
The government’s citation to FTC v. Dean Foods Co., 384 U.S. 597 (1966), for
the proposition that the Supreme Court has forbidden drawing meaning from
11 The government’s attempts to minimize CALEA II, saying its plans consisted of
“mere[] vague discussions” that never developed into a formal legislative submission
(Opp. 9), but federal officials familiar with that failed lobbying effort confirmed that
the FBI had in fact developed a “draft proposal” containing a web of detailed
provisions, including specific fines and compliance timelines, and had floated that
proposal with the White House. See Dkt. 16-17 [Nakashima, Proposal Seeks]. As
The Washington Post reported, advocates of the proposal within the government
dropped the effort, because they determined they could not get what they wanted
from Congress at that time: “Although ‘the legislative environment is very hostile
today,’ the intelligence community’s top lawyer, Robert S. Litt, said to colleagues in
an August [2015] e-mail, which was obtained by The Post, ‘it could turn in the event
of a terrorist attack or criminal event where strong encryption can be shown to have
hindered law enforcement.’ There is value, he said, in ‘keeping our options open for
such a situation.’” Ex. JJ [Ellen Nakashima & Andrea Peterson, Obama Faces
Growing Momentum to Support Widespread Encryption, Wash. Post (Sept. 16,
2015)].
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congressional silence in the All Writs Act context (Opp. 9), is simply inapposite. That
case concerned the powers of the FTC, not the powers of the courts under the All Writs
Act. 384 U.S. at 609. Also irrelevant is United States v. Craft, 535 U.S. 274 (2002),
which the government invokes for the unremarkable proposition that, oftentimes,
equally tenable conclusions can be drawn from failed legislation, including that
Congress thought existing legislation already encompassed the proposed enactment.
See id. at 287. Such an inference is not tenable here where Congress has faced
sustained zealous lobbying, has actively debated granting the requested powers, and has
made an affirmative decision not to do so. Bob Jones, 461 U.S. at 601. Rather,
Congress has chosen to selectively provide and withhold authorizations in a
“comprehensive federal scheme” of surveillance and telecommunications law, but has
not granted the expansive authority the government seeks. Isla Petroleum, 485 U.S. at
503; see also Trenkler v. United States, 536 F.3d 85, 97 (1st Cir. 2008) (courts must
“patrol . . . artful plead[ing]” about the “boundaries” of entitlements to writs in order to
prevent “frustrat[ion] [of] Congress’s discernible intent”); Garland v. Sullivan, 737 F.2d
1283, 1285–87 (3d Cir. 1984) (declining to construe the All Writs Act “as a grant of
authority to transfer to the United States Treasury the expense of compliance with
witness process” where the judiciary had no “statutory authorization”; “common sense
and appropriate concern for separation of powers caution against such an arrogation of
judicial power”).
C. New York Telephone And Its Progeny Do Not Authorize The Order.
The conscription of a private company to write new software and create a new
operating system that undermines the security of its own products—and thus the
security and privacy of its users—cannot be equated with the “meager,” not “offensive”
assistance of a public utility allowed under New York Telephone and its progeny. 434
U.S. at 174.
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1. Apple Is Far Removed From This Matter.
Apple’s connection to this case is too attenuated to support an order compelling it
to create new software that provides a back door to the iPhone. Whereas the public
utility in New York Telephone was not “so far removed” from the matter because its
facilities were “being employed to facilitate a criminal enterprise on a continuing basis,”
and the assistance requested involved setting up a routine pen register on a phone line
that the utility owned and operated, 434 U.S. at 174, Apple is a private company that
does not own or possess the phone at issue, has no existing means of accessing the data
that may or may not exist on the phone, and is not related to the underlying criminal
activity, which is not ongoing but ceased months ago.
The government argues that “courts have already issued AWA orders” requiring
manufacturers to “unlock” phones (Opp. 13 (citing cases)), but those cases involved
orders requiring “unlocking” assistance to provide access through existing means, not
the extraordinary remedy sought here, i.e., an order that requires creating new software
to undermine the phones’ (or in the Blake case, the iPad’s) security safeguards. The
orders in those cases were also issued ex parte without the benefit of adversarial
briefing and without confronting New York Telephone’s “far removed” analysis.
The government discusses Apple’s software licensing and data policies at length,
equating Apple to a feudal lord demanding fealty from its customers (“suzerainty”).
Opp. 14–16. But the government does not cite any authority, and none exists,
suggesting that the design features and software that exist on every iPhone somehow
link Apple to the subject phone and the crime. Likewise, the government has cited no
case holding that a license to use a product constituted a sufficient connection under
New York Telephone. Indeed, under the government’s theory, any ongoing post-
purchase connection between a manufacturer or service provider and a consumer
suffices to connect the two in perpetuity—even where, as here, the data on the iPhone is
inaccessible to Apple.
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Finally, each of the government’s authorities involved minimal assistance by a
third party in thwarting an ongoing crime that was (1) being facilitated by the third
parties’ products (United States v. Hall, 583 F. Supp. 717, 722 (E.D. Va. 1984)
(ordering bank to produce credit card records, where card was potentially being used to
support fugitive)); (2) occurring on the third parties’ premises (In re Application of the
U.S. for an Order Directing X to Provide Access to Videotapes, 2003 WL 22053105, at
*3 (D. Md. Aug. 22, 2003) (ordering apartment complex to provide access to existing
surveillance footage where government had reason to suspect that fugitive would return
to the complex)); or (3) using the third parties’ facilities (In re Application of the U.S.
for an Order Authorizing an In-Progress Trace of Wire Commc’ns over Tel. Facilities
(Mountain Bell), 616 F.2d 1122, 1132–33 (9th Cir. 1980) (ordering public utility to
assist in setting up pen trap where the utilities’ facilities were suspected of being used
for ongoing crime)). The government also relies on a case in which the court compelled
a defendant—not a third party—to provide the “unencrypted contents” of her computer
(Opp. 14 (citing United States v. Fricosu, 841 F. Supp. 2d 1232 (D. Colo. 2012)), but
that case has no bearing on the remoteness of a third party’s connection to a case.
2. The Order Would Impose Unprecedented And Offensive Burdens.
Forcing Apple to create new software that degrades its security features is
unprecedented and unlike any burden ever imposed under the All Writs Act. The
government’s assertion that the phone companies in Mountain Bell and In re
Application of the U.S. for an Order Authorizing the Installation of a Pen Register or
Touch-Tone Decoder and a Terminating Trap (Penn Bell), 610 F.2d 1148 (3d. Cir.
1979), were conscripted to “write” code, akin to the request here (Opp. 18–19),
mischaracterizes the actual assistance required in those cases. The government seizes
on the word “programmed” in those cases and superficially equates it to the process of
creating new software. Opp. 18–19. But the “programming” in those cases—back in
1979 and 1980—consisted of a “technician” using a “teletypewriter” in Mountain Bell
(Dkt. 149-1 [Wilkison Decl.] Ex. 6 at 7), and “t[ook] less than one minute” in Penn Bell
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(610 F.2d at 1152–53). Indeed, in Mountain Bell, the government itself stated that the
only burden imposed “was a large number of print-outs on the teletype machine”—not
creating new code. Ex. KK at 23–24 [Gov’t Br.]. More importantly, the phone
companies already had and themselves used the tracing capabilities the government
wanted to access. See Mountain Bell, 616 F.2d at 1126; Penn Bell, 610 F.2d at 1152–54
(e.g., to “locate[] defect[s]” and to help customers, “free of charge,” to identify
“annoying call[ers]”).12 And although relying heavily on Mountain Bell, the government
neglects to point out the court’s explicit warning that “[t]his holding is a narrow one,
and our decision today should not be read to authorize the wholesale imposition upon
private, third parties of duties pursuant to search warrants.” 616 F.2d at 1132.13 This
case stands light years from Mountain Bell. The government seeks to commandeer
Apple to design, create, test, and validate a new operating system that does not exist,
and that Apple believes—with overwhelming support from the technology community
and security experts—is too dangerous to create.14
Seeking to belittle this widely accepted policy position, the government grossly
mischaracterizes Apple’s objection to the requested Order as a concern that “compliance
will tarnish its brand” (Opp. 22), a mischaracterization that both the FBI Director and
the courts have flatly rejected. See Ex. EE at 15 [Comey, Encryption Hr’g] (“I don’t
12 The government’s reliance on Gonzalez v. Google, 234 F.R.D. 674 (N.D. Cal. 2006)
(Opp. 19 n.7), is also misplaced, because it is not an All Writs Act case and analyzes
the burden imposed under a completely different framework for civil discovery.
Also, the government fails to mention that in Gonzalez, Google could “extract the
information requested from its existing systems,” 234 F.R.D. at 683, unlike this case,
where Apple would be required to create an entirely new operating system.
13 The government’s desire to “develop all relevant facts” (Opp. 17 (internal quotation
marks omitted)), while understandable, is not, and never has been, a sufficient
justification for invoking the All Writs Act. See Ivey, 47 F.3d at 184–186 (refusing
relief even though plaintiff may have “no hope of prevailing in the underlying
litigation”).
14 The government also implicitly threatens that if Apple does not acquiesce, the
government will seek to compel Apple to turn over its source code and private
electronic signature. Opp. 22 n.9. The catastrophic security implications of that
threat only highlight the government’s fundamental misunderstanding or reckless
disregard of the technology at issue and the security risks implicated by its
suggestion.
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question [Apple’s] motive”); In re Apple, Inc., 2016 WL 783565, at *21 n.35
(disagreeing “with the government’s contention that Apple’s objection [to being
compelled to decrypt an iPhone] is not ‘conscientious’ but merely a matter of ‘its
concern with public relations’”).15 As Apple explained in its Motion, Apple prioritizes
the security and privacy of its users, and that priority is reflected in Apple’s increasingly
secure operating systems, in which Apple has chosen not to create a back door.16
Compelling Apple to reverse that choice is “offensive to it.” New York Tel. Co., 434
U.S. at 174. The government attempts to dilute New York Telephone by making the
obvious and irrelevant point that “programming software is not ‘offensive’ to Apple
generally.” Opp. 23. But the Court was not concerned with whether the phone
company considered operating pen registers to be “generally” offensive—of course it
was not, because the company “regularly employ[ed] such devices.” 434 U.S. at 174.
The Court instead, in the context of weighing the privacy interests implicated by the use
of pen registers, was concerned with whether the company found it “offensive” in the
specific context of the government’s request—finding that it was not, given the
company’s own similar use, “without court order,” to “detect[] fraud” and “prevent[]
violations of law,” and that the company had earlier “agreed to supply the FBI with all
the information required to install its own pen registers.” Id. at 174–75. By contrast,
Apple has never built, and would find it “offensive” to build GovtOS.
15 The government accuses Apple of developing the passcode-based encryption
features at issue in this case for marketing purposes. E.g., Opp. 1, 22. This is a
reckless and unfounded allegation. Since passcode-based encryption was first
introduced in October 2014, Apple has produced 627 separate ads in the United
States and approximately 1,793 ads worldwide. Ferrini Declaration ¶ 5. These ads
have generated 99 and 253 billion impressions, respectively. Id. Not a single one
advertised or promoted the ability of Apple’s software to block law enforcement
requests for access to the contents of Apple devices. Id. ¶ 6.
16 The idea that Apple enhances its security to confound law enforcement is nonsense.
Apple’s “chain of trust” process—which follows accepted industry best practices—is
designed to secure its mobile platform against the never-ending threat from hackers
and cyber-criminals. See Neuenschwander Supp. Decl. ¶¶ 4–15. It is the same
process that helps protect desktop computers from viruses and Trojan horses, and
that ensures hackers do not tamper with the software on automobiles. Id. ¶¶ 14–15.
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Moreover, there is no question the back door, if built, will be used repeatedly and
poses grave security risks. The government contends that there is “no precedent for
considering possible prospective burdens as a basis for withholding a narrow AWA
order now.” Opp. 27. But in Plum Creek, the Ninth Circuit declined to issue an AWA
order in part because of the prospective risks and costs that would be imposed on the
company by OSHA’s request to compel it to use certain equipment to aid OSHA’s
investigation of the company’s premises. 608 F.2d at 1289 & n.4. Similarly, in
assessing the burden imposed by the tracing order in Mountain Bell, the Ninth Circuit
considered the risk of system malfunction caused by that trace “in conjunction with
other court-ordered traces.” 616 F.2d at 1132 (emphasis added). Here, if Apple is
forced to create software in this case, other law enforcement agencies will seek similar
orders to help them hack thousands of other phones, as FBI Director Comey confirmed
when he said he would “of course” use the All Writs Act to “return to the courts in
future cases to demand that Apple and other private companies assist . . . in unlocking
secure devices.” Ex. EE at 15 [Encryption Hr’g].17 Meanwhile, “[e]ncryption[] [will]
always be[] available to bad actors,” as Director Comey conceded, id. at 23–24, creating
a perverse unilateral disarmament through the erosion of the strong defense against
cyberterrorism. See Ex. LL at 20 [Encryption Hr’g] (Prof. Landau, stating the requested
17 See also Ex. LL at 10 [Encryption Hr’g] (Vance: “thousands of phones”); Ex. EE at
22 [Encryption Hr’g] (Rep. Nadler: “[W]e all understand that it’s not just a specific
case.”); Dkt. 70 [Fed. Law Enforcement Officers’ Assoc. amicus brief] at 6–9
(noting requests for similar orders will follow, in cases ranging from homicide to
identity theft). Indeed, Richard Clarke, former National Coordinator for Security,
Infrastructure Protection and Counter-terrorism, recently stated his belief that the
FBI is “not as interested in solving the problem as they are in getting a legal
precedent . . . that the government can compel a computer device manufacturer to
allow the government in.” Ex. MM [Encryption, Privacy Are Larger Issues Than
Fighting Terrorism, Clarke Says, NPR (Mar. 14, 2016)]; see also Ex. NN [Yoni
Heisler, Former CIA Director Calls out the FBI for Wanting to Fundamentally
Change the iPhone, BGR (Mar. 11, 1016)] (Former CIA Director James Woolsey:
“[I]t did seem to me as if the FBI was trying to get a right essentially to effectively
decide what kind of an operating system Apple was going to have, and that they
were not just trying to get into one phone.”).
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Order “would weaken us but not change [the availability of strong encryption] for the
bad guys”).
The government’s assertion that “there is no reason to think that the code Apple
writes in compliance with the Order will ever leave Apple’s possession” (Opp. 24),
simply shows the government misunderstands the technology and the nature of the
cyber-threat landscape. As Apple engineer Erik Neuenschwander states:
I believe that Apple’s iOS platform is the most-attacked software platform in
existence. Each time Apple closes one vulnerability, attackers work to find
another. This is a constant and never-ending battle. Mr. Perino’s description of
third-party efforts to circumvent Apple’s security demonstrates this point. And
the protections that the government now asks Apple to compromise are the most
security-critical software component of the iPhone—any vulnerability or back
door, whether introduced intentionally or unintentionally, can represent a risk to
all users of Apple devices simultaneously.
Neuenschwander Supp. Decl. ¶ 28. The government is also mistaken in claiming that
the crippled iOS it wants Apple to build can only be used on one iPhone:
Mr. Perino’s characterization of Apple’s process . . . is inaccurate. Apple does
not create hundreds of millions of operating systems each tailored to an
individual device. Each time Apple releases a new operating system, that
operating system is the same for every device of a given model. The operating
system then gets a personalized signature specific to each device. This
personalization occurs as part of the installation process after the iOS is created.
Once GovtOS is created, personalizing it to a new device becomes a simple
process. If Apple were forced to create GovtOS for installation on the device at
issue in this case, it would likely take only minutes for Apple, or a malicious
actor with sufficient access, to perform the necessary engineering work to install
it on another device of the same model.
. . . [T]he initial creation of GovtOS itself creates serious ongoing burdens and
risks. This includes the risk that if the ability to install GovtOS got into the
wrong hands, it would open a significant new avenue of attack, undermining the
security protections that Apple has spent years developing to protect its
customers.
Id. ¶¶ 17–19.
Cybersecurity experts agree. E.g., Ex. OO [Experts: The FBI’s iPhone-Unlocking
Plan for Apple Is Risky, Chi. Trib. (Feb. 22, 2016)] (“[I]t may simply be impossible to
keep the program from falling into the wrong hands.”); Ex. OO (quoting former NSA
expert Will Ackerly: “[u]sing the software even once could give authorities or outsiders
new clues to how Apple’s security features work, potentially exposing vulnerabilities
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that could be exploited in the future”); Ex EE at 5 [Rep. Conyers, Encryption Hr’g]
(“The technical experts have warned us that it is impossible to intentionally introduce
flaws into secure products—often called backdoors—that only law enforcement can
exploit to the exclusion of terrorists and cyber criminals.”); Dkt. 82 [Experts’ amicus
brief] at 10 (the government’s proposed safeguards “are not meaningful barriers to
misuse and abuse of the forensic capabilities this Court is ordering Apple to create”); id.
at 18 (“A signed firmware update that is not truly limited to a single device, even one
created for legitimate forensic purposes, becomes like a ‘skeleton key’ for the entire
class of devices.”).18 Moreover, the more often this tool is used, the greater the risk it
will be stolen or otherwise disclosed. Ex. RR at 17 [Prof. Landau, Written Testimony
Encryption Hr’g] (“routinization will make it too easy for a sophisticated enemy”); see
Neuenschwander Supp. Decl. ¶ 20. No All Writs Act authority permits courts to require
an innocent private company to create and maintain code whose “public danger is
apparent” and whose disclosure would be “catastrophic” to the security and privacy
interests of hundreds of millions of users.19 Dkt. 82 [Experts’ amicus brief] at 15.
Finally, the government attempts to disclaim the obvious international
implications of its demand, asserting that any pressure to hand over the same software to
foreign agents “flows from [Apple’s] decision to do business in foreign countries . . . .”
Opp. 26. Contrary to the government’s misleading statistics (Opp. 26), which had to do
18 See also Ex. PP [Kalev Leetaru, Why the Apple Versus FBI Debate Matters in a
Globalized World, Forbes (Mar. 2, 2016)] (“[T]here is no way to make a backdoor
that works only for this single phone—the process of creating the backdoor
establishes a blueprint and workflow for compromising all iPhones.”); Ex QQ
[Elizabeth Weise, Chertoff: iPhone Override Is Software Equivalent of Biological
Weapon, USA Today (Mar. 4, 2016) (“Once you’ve created code that’s potentially
compromising, it’s like a bacteriological weapon. You’re always afraid of it getting
out of the lab.”).
19 Even Apple devices are not immune from cyberattack. Ex. SS [Jim Finkle, Mac
Ransomware Caught Before Large Number of Computers Infected, Reuters (Mar. 7,
2016)] (describing attack on Mac computers in which hackers successfully installed
malicious software by uploading disguised malicious software to a third party site
and using a public digital certificate—a cryptographic signature—to trick the
computers into believing the malicious code was trustworthy).
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with lawful process and did not compel the creation of software that undermines the
security of its users, Apple has never built a back door of any kind into iOS, or
otherwise made data stored on the iPhone or in iCloud more technically accessible to
any country’s government. See Dkt. 16-28 [Apple Inc., Privacy, Gov’t Info. Requests];
Federighi Decl. ¶¶ 6–7. The government is wrong in asserting that Apple made “special
accommodations” for China (Opp. 26), as Apple uses the same security protocols
everywhere in the world and follows the same standards for responding to law
enforcement requests. See Federighi Decl. ¶ 5.
3. The Government Has Not Demonstrated Necessity.
The government does not deny that there may be other agencies in the
government that could assist it in unlocking the phone and accessing its data; rather, it
claims, without support, that it has no obligation to consult other agencies. Opp. 30; see
also Ex. MM [Encryption, Privacy Are Larger Issues Than Fighting Terrorism, Clarke
Says, NPR (Mar. 14, 2016)] (quoting Richard Clarke (former National Coordinator for
Security, Infrastructure Protection and Counter-terrorism): “Every expert I know
believes that NSA could crack this phone.”); Ex. RR at 13 [Prof. Landau, Written
Testimony, Encryption Hr’g] (noting that “solutions to accessing the data already exist
within the forensic analysis community”); Ex EE at 26–28 [Encryption Hr’g] (Rep. Issa
asking Director Comey a series of questions as to the avenues the FBI exhausted, to
which the Director said he did not know, and Rep. Issa replying, “If you haven’t asked
that question, the question is how can you come before this committee, and before a
federal judge, and demand that somebody else invent something[?]”).20 Indeed, if
nothing else, the Perino Declaration demonstrates that the government and “third parties
20 Defining the scope of the All Writs Act as inversely proportional to the capabilities
of the FBI removes any incentive for it to innovate and develop more robust forensic
capabilities. See Ex. LL at 7–8 [Prof. Landau, Encryption Hr’g] (“The FBI needs to
take a page from the NSA. You may recall that in the late 1990s, the NSA was
complaining it was going deaf from encrypted calls? Well, they’ve obviously
improved their technology a great deal. . . . Rather than asking industry to weaken
protections, law enforcement must instead develop a capability for conducting
sophisticated investigations themselves.”).
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have already come close to developing a tool that would defeat part of iOS’s present
security capabilities.” Neuenschwander Supp. Decl. ¶ 29. Moreover, while they now
argue that the FBI’s changing of the iCloud passcode—which ended any hope of
backing up the phone’s data and accessing it via iCloud—“was the reasoned decision of
experienced FBI agents” (Opp. 29), the FBI Director himself admitted to Congress
under oath that the decision was a “mistake” (Ex. EE at 22 [Encryption Hr’g]). The
Justice Department’s shifting, contradictory positions on this issue—first blaming the
passcode change on the County, then admitting that the FBI told the County to change
the passcode after the County objected to being blamed for doing so, and now trying to
justify the decision in the face of Director Comey’s admission that it was a mistake
(id.)—discredits any notion that the government properly exhausted all viable
investigative alternatives before seeking this extraordinary order from this Court. See
New York Tel. Co., 434 U.S. at 175 (noting there “there [wa]s no conceivable way” for
the government to obtain the pen register data). Finally, the government’s showing of
need for this unprecedented order is speculative at best. Ex. TT [San Bernardino Police
Chief Sees Chance Nothing of Value on Shooter’s iPhone, NPR (last updated Mar. 2,
2016)] (“I’ll be honest with you, I think that there is a reasonably good chance that there
is nothing of any value on the phone.”).
D. The Order Would Violate The First Amendment And Due Process Clause.
The government begins its First Amendment analysis by suggesting that “[t]here
is reason to doubt that functional programming is even entitled to traditional speech
protections” (Opp. 32), evincing its confusion over the technology it demands Apple
create.21 Even assuming there is such a thing as purely functional code, creating the type
of software demanded here, an operating system that has never existed before, would
necessarily involve precisely the kind of expression of ideas and concepts protected by
21 The government also wrongly suggests that Apple can simply leverage existing
hacking software to accomplish the government’s demands. Using third-party
software would cause more problems than it would solve. See Neuenschwander
Supp. Decl. ¶¶ 21-26.
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the First Amendment. Because writing code requires a choice of (1) language, (2)
audience, and (3) syntax and vocabulary, as well as the creation of (4) data structures,
(5) algorithms to manipulate and transform data, (6) detailed textual descriptions
explaining what code is doing, and (7) methods of communicating information to the
user, “[t]here are a number of ways to write code to accomplish a given task.” Dkt. 16-
33 [Neuenschwander Decl.], ¶¶ 65–66; see also Ex. UU [Jonathan Keats, Code Isn’t
Just Functional, It’s Poetic, Wired (Apr. 16, 2013)]. As such, code falls squarely within
the First Amendment’s protection, as even the cases cited by the government
acknowledge.22 See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 449–50 (2d
Cir. 2001) (“[C]omputer code conveying information is ‘speech’ within the meaning of
the First Amendment.”); United States v. Elcom, Ltd., 203 F. Supp. 2d 1111, 1127 (N.D.
Cal. 2002) (“‘[C]omputer code is covered, or as sometimes said, “protected” by the First
Amendment.’” (quoting Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294,
327 (S.D.N.Y. 2000))).
The government next insists that it seeks only to “compel[] conduct—namely, the
removal of barriers from Farook’s iPhone—with an incidental effect on ‘speech.’” Opp.
33. But the government has it exactly backwards—it is asking the Court to compel
Apple to engage in speech, writing code that is “offensive to it,” New York Tel. Co., 434
U.S. at 174, and that it vigorously opposes—to help the government engage in the
conduct of “brute-forcing” the iPhone to try to determine the passcode. As the Supreme
Court observed in Riley v. National Federation of the Blind of North Carolina, Inc.,
“[m]andating speech that a speaker would not otherwise make necessarily alters the
content of the speech[,]” and laws imposing such mandates should be “consider[ed] . . .
22 Although the government suggests that the code it requests is not speech because
“there is no audience” (Opp. 33), this has never been a requirement for First
Amendment protection. See Spence v. Washington, 418 U.S. 405, 409 (1974) (per
curiam) (holding that the display of an upside-down American flag was speech
“[a]lthough the stipulated facts fail to show that any member of the general public
viewed the flag,” as the display had a communicative element).
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content-based regulation[s] of speech.” 487 U.S. 781, 795 (1988) (applying strict
scrutiny).
The government attempts to evade this unavoidable conclusion by insisting that,
“[t]o the extent [that] Apple’s software includes expressive elements . . . the Order
permits Apple to express whatever it wants, so long as the software functions” by
allowing it to hack into iPhones. Opp. 32–33. This serves only to illuminate the
broader speech implications of the government’s request. The code that the government
is asking the Court to force Apple to write contains an extra layer of expression unique
to this case. When Apple designed iOS 8, it consciously took a position on an issue of
public importance. See, e.g., Dkt. 16-28 [Apple Inc., Privacy Policy] (“We believe
security shouldn’t come at the expense of individual privacy.”). The government
disagrees with Apple’s position and asks this Court to compel Apple to write new code
that reflects its own viewpoint—a viewpoint that is deeply offensive to Apple. Cf. New
York Tel. Co., 434 U.S. at 174 (observing that “the use of pen registers is by no means
offensive” to the objecting party).
The closest case the government can find to support its unprecedented intrusion
on free speech is Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S.
47 (2006), which held that Congress has the power under the Spending Clause to make
federal funding for law schools conditional on those schools granting access to military
recruiters on equal terms as others. This is a stretch to say the least.
There is an obvious difference between a recruitment event at a law school—
which would likely constitute a limited public forum at state-funded schools, see
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)—and
forcing Apple to write new and unwanted code. Indeed, Apple is not only being asked
to design this code, but to cryptographically sign it, thereby endorsing code that it
deems dangerous. See Dkt. 16-33 [Neuenschwander Decl.], ¶¶ 18, 27-28.
The government’s position has sweeping implications. Under the government’s
view, the state could force an artist to paint a poster, a singer to perform a song, or an
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author to write a book, so long as its purpose was to achieve some permissible end,
whether increasing military enrollment or promoting public health. “Accepting the
Government’s theory would give [it] the [] license to regulate what we do not do,
fundamentally changing the relation between the citizen and the Federal Government.”
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2589 (2012) (opinion of
Roberts, C.J.) (emphasis added). The First Amendment does not permit such a
wholesale derogation of Americans’ right not to speak.
Finally, the government knows Apple does not espouse some Lochner-era theory
of unfettered economic right to marketing activity. See Opp. 35. It knows that Apple
instead objects to the government’s attempted conscription of it to send individual
citizens into a super-secure facility to write code for several weeks on behalf of the
government on a mission that is contrary to the values of the company and these
individuals. Such conscription is fundamentally “offensive to” Apple’s core principles,
and would “pose a severe threat to the autonomy” of Apple and its engineers. New York
Tel. Co., 434 U.S. at 171, 174. That violates due process. Cf. Obergefell v. Hodges,
135 S. Ct. 2584, 2597 (2015) (due process protects “personal choices central to
individual . . . autonomy”).
III. CONCLUSION
Almost 90 years ago, Justice Louis Brandeis, reflecting on the “progress of
science” beyond wiretapping, famously warned that “[t]he greatest dangers to liberty
lurk in insidious encroachment by men of zeal, well-meaning but without
understanding.” Olmstead v. United States, 277 U.S. 438, 474, 479 (1928). In this case,
the government’s motivations are understandable, but its methods for achieving its
objectives are contrary to the rule of law, the democratic process, and the rights of the
American people. The Court should vacate the order and deny the government’s motion
to compel.
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Dated: March 15, 2016 Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
By: /s/ Theodore J. Boutrous Jr.
Theodore J. Boutrous, Jr.
Nicola T. Hanna
Eric D. Vandevelde
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: 213.229.7000
Facsimile: 213.229.7520
Theodore B. Olson
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036-5306
Telephone: 202.955.8500
Facsimile: 202.467.0539
Marc J. Zwillinger *
Jeffrey G. Landis *
ZwillGen PLLC
1900 M Street N.W., Suite 250
Washington, DC 20036
Telephone: 202.706.5202
Facsimile: 202.706.5298
*Admitted Pro Hac Vice
Attorneys for Apple Inc.
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