from the and-off-we-go dept
Apple has now filed its argument against the DOJ, making a variety of points, but hitting hard on the idea that the DOJ is flat out lying in now claiming that Apple's assistance in unlocking this phone is "necessary." As we've noted, the end result of the San Bernardino case, where the FBI eventually "figured out" how to get into the phone, raises questions about whether it truly exhausted all possibilities in this case -- which involves a newer phone, but an older operating system.
... the record is devoid of evidence that Apple’s assistance is necessary—and remains so even after a similar claim of necessity was proven untrue in a recent proceeding in California. Indeed, in its original application to Judge Orenstein, the government acknowledged that it sought Apple’s help to spare the government from having to expend “significant resources.”...And, of course, Apple suggests (as it has all along) that the DOJ is totally misreading and/or misrepresenting the All Writs Act:
The government has made no showing that it has exhausted alternative means for extracting data from the iPhone at issue here, either by making a serious attempt to obtain the passcode from the individual defendant who set it in the first place—nor to obtain passcode hints or other helpful information from the defendant—or by consulting other government agencies and third parties known to the government. Indeed, the government has gone so far as to claim that it has no obligation to do so... notwithstanding media reports that suggest that companies already offer commercial solutions capable of accessing data from phones running iOS 7, which is nearly three years old.
The government would have this Court believe that the All Writs Act, first enacted in 1789, is a boundless grant of authority that permits courts to enter any order the government seeks—including orders conscripting private third parties into providing whatever assistance law enforcement deems appropriate—as long as Congress has not expressly prohibited its issuance. DE 30 at 18. But that characterization of the All Writs Act turns our system of limited government on its head. It simply is not the case that federal courts can issue any order the executive branch dreams up unless and until Congress expressly prohibits it. That construction of the All Writs Act has it exactly backwards. If the government’s view is correct, Congress would never need to pass permissive legislation in the law enforcement context because everything would be on the table until explicitly prohibited. That may be what the government prefers, but it is not the legal system in which it operates.The company also questions whether or not it's really necessary for the government to get into this phone, given that the defendant in the case, Jun Feng, has already pled guilty and the phone hasn't been used in years. Also, the government didn't even seek a warrant to get into the phone for over a year after seizing it.
Apple also raises some procedural concerns. As noted above, the government just asked for a new judge to review, rather than doing an official appeal, and Apple points out that it's doing this to try to avoid certain standards:
In its papers, the government takes great pains to characterize its brief as a renewed application rather than an appeal from Judge Orenstein’s order, presumably to bolster its contention that Judge Orenstein’s order should be reviewed de novo.... In doing so, the government attempts to obscure the fact that this matter was extensively briefed, a hearing was held, supplemental briefing was provided, and Judge Orenstein issued a 50-page order. Moreover, the government’s insistence that it is entitled to a do-over is belied by Federal Rule of Criminal Procedure 59 and Section 636 of the Federal Magistrates Act.One of the key points made by the DOJ in its filing in this case was that Apple had been fine with previous such All Writs Act orders on phones running iOS 7, where it does have more access to information. But Apple notes that the details of this case are different in important ways: this is the first case where the judge specifically brought Apple into court, rather than ruling without Apple being involved at all (i.e. "ex parte").
To be sure, courts have previously issued ex parte orders directing Apple to “assist in extracting data from an Apple device through bypassing the passcode in order to execute a search warrant.” But the government’s cited orders were issued ex parte, without Apple’s participation, without the benefit of adversarial briefing on the scope of the All Writs Act, and with no supporting analysis. Apple also was not a party in United States v. Blake, No. 13-CR-80054 (S.D. Fl. July 14, 2014), in which the court denied the defendant’s motion to suppress evidence gathered from an iPhone that Apple helped unlock. Accordingly, such cases are not even persuasive authority on the scope of the All Writs Act, let alone precedential; certainly such ex parte orders issued with little analysis should carry less weight than Judge Orenstein’s lengthy and reasoned opinion.Most of the other arguments cover things discussed earlier, around why the All Writs Act doesn't apply and why CALEA covers this situation and does not require Apple to assist.
So, while the San Bernardino case may be over, the NY case is still raging. I imagine the DOJ's next filing will be... interesting as well.