Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 1 of 35 Page ID #:1

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EILEEN M. DECKER
United States Attorney
PATRICIA A. DONAHUE
Assistant United States Attorney
Chief , National Security Division
TRACY L. WILKISON (California Bar No. 184948)
Assistant United States Attorney
Chief , Cyber and Intellectual Property Crimes Section
ALLEN W. CH IU (California Bar No. 240516)
Assistant United States Attorney
Terrorism and Export Crimes Section
15 00 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone:
(2 1 3) 894-0622/2435
Facsimile:
(213) 894 - 8601
Email:
Tracy .Wilkison@usdoj . gov
Allen.Chiu@usdo j.gov

UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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("".)

c-.>r

Clerk

DIST.
CENTRAL

Attorneys for Applicant

UNITED STATES OF AMERICA

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BY

IN THE MATTER OF THE SEARCH OF

AN APPLE IPHONE SEIZED DURING
THE
OF A SEARCH
WARRANT ON A BLACK LEXUS IS300,
CALIFORNIA LICENSE PLATE
35KGD203

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CM 16 i o

ED No.

(SP)

GOVERNMENT'S MOTION TO COMPEL

APPLE INC. TO COMPLY WITH THIS
COURT'S FEBRUARY 16, 2016 ORDER
COMPELLING ASSISTANCE IN SEARCH;
EXHIBIT
Hearing Date: March 22, 2016
Hearing Time: 1:00 p.m .
Location: Courtroom of the Hon.
Sheri Pym

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The United States of America , by and through its counsel of

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record, the United States Attorney for the Central District of

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California, and Assistant United States Attorneys Tracy L. Wilkison

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and Allen

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("Apple" ) to Comply with this Court's February 16, 20 1 6 Order

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Compelling Apple To Assist Agents In Its Search.

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w.

Chiu, hereby files its Motion to Compel Apple Inc.

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 2 of 35 Page ID #:2

This Motion is based upon the attached memorandum of points and

authoritiesr the attached exhibit

including the application and order compelling Apple to assist the

FBI and the underlying search warrantr and such further evidence and

argument as the Court may permit.

the files and records in this case

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Dated: February 19

2016

Respectfully submitted(
EILEEN M. DECKER
United States Attorney
PATRICIA A. DONAHUE
Assistant United States Attorney
Chiefr National Security Division

Tracy Wilkison signature

ALLEN W. CHIU
Assistant ~i'!!'ed,,~ates Attorneys
Attorneys for Applicant
UNITED STATES OF AMERICA

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Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 3 of 35 Page ID #:3

TABLE OF CONTENTS

DESCRIPTION

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. THE COURT SHOULD ISSUE AN ORDER COMPELLING APPLE TO COMPLY

WITH ITS ORDER REQUIRING ASSISTANCE WITH THE FBI'S SEARCH
OF THE SUBJECT DEVICE PURSUANT TO THE ALL WRITS ACT . . . . . . . . . . . . 7

A.

PAGE

This Court's All Writs Act Order is Lawful and Binding .... 7

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1.

The All Writs Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11

2.

Apple is not "far removed 11 from this matter . . . . . . . . . 10

12

3.

The Order does not place an unreasonable burden

on Apple . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

4.

Apple's assistance is necessary to effectuate the

warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

5.

Apple's Potential Marketing Concerns Provide

Insufficient Grounds to Disregard a Duly Issued
Court Order Following a Warrant Based on a
Finding of Probable Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

6.

Public Policy Favors Enforcing of the Order . . . . . . . . . 21

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B.

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IV.

Congress has Not Limited this Court's Authority to

Issue an All Writs Act Order to Apple . . . . . . . . . . . . . . . . . . . . 21
1.

No statute addresses data extraction from a

passcode-locked cell phone . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2.

Congressional inaction does not deprive courts of

their authority under the All Writs Act . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 4 of 35 Page ID #:4

TABLE OF AUTHORITIES

DESCRIPTION

FEDERAL CASES

Central Bank of Denver v. First Interstate Bank of Denver,

511 u.s. 164 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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9

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11

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PAGE

General Construction Company v. Castro,

401 F. 3d 963 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
In re Application of the United States for an Order
Directing a Provider of Communication Services to Provide
Technical Assistance to the DEA, 2015 WL 5233551, at *4-5
(D.P.R. Aug. 27, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
In re Application of United States for an Order Authorizing an
In-Progress Trace of Wire Commc'ns over Tel. Facilities
(Mountain Bell), 616 F.2d 1122 (9th Cir. 1980) ........... . passim
In re Application of United States for an Order Directing X to
Provide Access to Videotapes (Access to Videotapes),
2003 WL 22053105, at *3 (D. Md. Aug. 22, 2003)
(unpublished) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
In re Order Requiring [XXX], Inc. to Assist in the Execution
of a Search Warrant Issued by This Court by Unlocking a
Cellphone (In re XXX), 2014 WL 5510865, at *2 (S.D.N.Y.
Oct. 31, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15
Konop v. Hawaiian Airlines, Inc.,
302 F. 3d 868 (9th Cir. 2002) .................................. 22
Pennsylvania Bureau of Correction v. United States Marshals
Service,
474 u.s. 34 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 22, 24
Plum Creek Lumber Co. v. Hutton,
608 F.2d 1283 (9th Cir. 1979) .................................. 7
Riley v. California,
134 S. Ct. 2473

(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Catoggio,

698 F. 3d 64 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

25

United States v. Craft,

535 u.s. 274 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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United States v. Fricosu,

841 F.Supp.2d 1232 (D. Co. 2012) .............................. 17

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United States v. Hall,

583 F. Supp. 717 (E.D. Va. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
United States v. Li,
55 F.3d 325, 329

(7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Navarro,

No. 13-CR 5525, ECF No. 39

(W.D. Wa. Nov. 13, 2013) . . . . . . . . . . . . 9

United States v. New York Telephone Co.,

434 U.S. 159 ( 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

FEDERAL STATUTES

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u.s.c.

2510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

18

u.s.c.

3103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

10

28

u.s.c.

1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11

47

u.s.c.

1001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

12

47

u.s.c.

1002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,

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Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 6 of 35 Page ID #:6

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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

Rather than assist the effort to fully investigate a deadly

terrorist attack by obeying this Court's Order of February 16, 2016,

Apple has responded by publicly repudiating that Order.

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technology, rather th2n the law, to control access to data which has

been found by this Court to be warranted for an important

investigation.

See Exhibit

Apple has attempted to design and market its products to allow

Despite its efforts, Apple nonetheless retains the

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technical ability to comply with the Order, and so should be required

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to obey it.

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Before Syed Rizwan Farook ("Farook") and his wife Tafsheen Malik

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shot and killed 14 people and injured 22 others at the Inland

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Regional Center in San Bernardino, Farook's employer issued him an

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iPhone.

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iPhone during the investigation into the massacre.

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has reason to believe that Farook used that iPhone to communicate

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with some of the very people whom he and Malik murdered.

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may contain critical communications and data prior to and around the

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time of the shooting that, thus far:

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may reside solely on the phonei and (3) cannot be accessed by any

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other means known to either the government or Apple.

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obtained a warrant to search the iPhone, and the owner of the iPhone,

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Farook's employer, also gave the FBI its consent to the search.

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Because the iPhone was locked, the government subsequently sought

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Apple's help in its efforts to execute the lawfully issued search

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warrant.

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The Federal Bureau of Investigation ("FBI") recovered that

Apple refused.

(1)

The government

The phone

has not been accessedi

(2)

The FBI

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 7 of 35 Page ID #:7

Apple left the government with no option other than to apply to

this Court for the Order issued on February 16

requires Apple to assist the FBI with respect to this single iPhone

used by Farook by providing the FBI with the opportunity to determine

the passcode.

alleges/ require Apple to create or provide a "back door

iPhone; it does not provide "hackers and criminals

iPhones; it does not require Apple to "hack [its] own usersrr or to

"decrypt

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2016.

The Order

The Order does notr as Apple 1 s public statement

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to every

access to

its own phones; it does not give the government "the power

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to reach into anyoners device

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authorization; and it does not compromise the security of personal

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information.

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to retain custody of its software at all timesr and it gives Apple

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flexibility in the manner in which it provides assistance.

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the software never has to come into the government S custody.

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See Exhibit 1.

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without a warrant or court

To the contrary/ the Order allows Apple

In factr

In the pastr Apple has consistently complied with a significant

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number of orders issued pursuant to the All Writs Act to facilitate

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the execution of search warrants on Apple devices running earlier

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versions of iOS.

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warrant is therefore not unprecedented; Apple itself has recognized

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it for years.

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statements by Apple r lA\pple r s current refusal to comply with the

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Court S Order, despite the technical feasibility of doing

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The use of the All Writs Act to facilitate a

Based on Applers recent public statement and other

instead

S0,

Apple s Legal Process Guidelines continue to state that Apple

will provide assistance with unlocking devices running iOS versions
earlier than 8.0, and advises as to what language to include in the
order. See "Extracting Data from Passcode Locked iOS DeviceS
Apple
Legal Process Guidelines III (I) (updated September 29 2015) r
available at http://www.apple.com/privacy/docs/legal-processguidelines-us.pdf.
However/ Apple has informed another court that it
now objects to providing such assistance.
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Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 8 of 35 Page ID #:8

appears to be based on its concern for its business model and public

brand marketing strategy.

Accordingly, the government now brings this motion to compel.

While the Order includes the provision that "to the extent that Apple

believes that compliance with this Order would be unreasonably

burdensome, it may make an application to this Court for relief

within five business days of receipt of the Order." Apple's public

statement makes clear that Apple will not comply with the Court's

Order.

The government does not seek to deny Apple its right to be

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heard, and expects these issues to be fully briefed before the Court;

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however, the urgency of this investigation requires this motion now

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that Apple has made its intention not to comply patently clear. 3

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This aspect of the investigation into the December 2, 2015 terrorist

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attack must move forward.

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II.

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STATEMENT OF FACTS

As set forth in the government's application for the All Writs

Act Order, and the Declaration of FBI Supervisory Special Agent

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("SSA") Christopher Pluhar, which was attached thereto, both of which

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were filed on February 16, 2016, the FBI has been investigating the

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As Apple has stated on its web page, "Our commitment to

customer privacy doesn't stop because of a government information
request. ... Unlike our competitors, Apple cannot bypass your passcode
and therefore cannot access this data.
So it's not technically
feasible for us to respond to government warrants for the extraction
of this data from devices in their possession running iOS8."
(https://web.archive.org/web/20140918023950/http://www.apple.com/priv
acy/government-informaton-requests/).
Notably, notwithstanding this
previous statement, Apple concedes that it has retained the ability
to do as the Court ordered.
Although a separate order compelling Apple's compliance with
this Court's February 16, 2016, order is not legally necessary, in
light of Apple's publicly stated "[o]pposing [of] this order" and its
stated interest in adversarial testing of the order's legal merits,
the government files this noticed motion to provide Apple with the
due process and adversarial testing it seeks.
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December 2, 2015 mass murder of 14 people, and the shooting and

injuring of 22 others, at the Inland Regional Center ("IRC") in San

Bernardino, California, and the participation by Farook and his wife

Malik in that crime.

shoot-out after a pursuit with law enforcement.

Farook and Malik died later that day in a

Since that time, the FBI has been tirelessly investigating the

precise role of those who may have been involved in the attack.

part of this investigation, the FBI obtained search warrants to

search, among other locations and items, the digital devices and

As

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online accounts of Farook and Malik.

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has discovered crucial information about the attack.

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the FBI discovered that on December 2, 2015, at approximately 11:14

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a.m., a post on a Facebook page associated with Malik stated, "We

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pledge allegiance to Khalifa bu bkr al bhaghdadi al quraishi,"

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referring to Abu Bakr Al Baghdadi, the leader of Islamic State of

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Iraq and the Levant ("ISIL"), also referred to as the Islamic State

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("IS"), or the Islamic State of Iraq and al-sham ("ISIS"), or Daesh.

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ISIL is designated as a foreign terrorist organization by the United

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States Department of State and has been so designated since December

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2004.

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resulted in the discovery of thousands of rounds of ammunition and

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over a dozen pipe bombs.

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Through those searches, the FBI

For example,

Moreover, a search warrant executed at Farook's residence

In addition, as part of the FBI's investigation, on December 3,

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2015, the Honorable David T. Bristow, United States Magistrate Judge,

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issued a search warrant in Docket Number ED 15-0451M for a black

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Lexus IS300, which was a vehicle that Farook used.

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parked outside of his residence where the thousands of rounds of

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ammunition and pipe bombs were found.

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The vehicle was

The search warrant for the

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 10 of 35 Page ID #:10

vehicle also ordered the search of digital devices located within it.

Inside the vehicle the FBI found a cellular telephone of an Apple

make: iPhone 5C, Model: A1532, P/N:MGFG2LL/A, S/N:FFMNQ3MTG2DJ,

IMEI:358820052301412, on the Verizon Network (the "SUBJECT DEVICE")

The SUBJECT DEVICE is owned by Farook's employer at the San

Bernardino County Department of Public Health ("SBCDPH"), and was

assigned to, and used by, Farook as part of his employment.

SBCDPH provided the government its consent to search the SUBJECT

DEVICE and to Apple's assistance with that search. 4

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The

Nonetheless, despite the search warrant ordered by the Court and

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the owner's consent to search the SUBJECT DEVICE, the FBI has been

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unable to search the SUBJECT DEVICE because it is "locked" or secured

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with a user-determined, numeric passcode.

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has been unable to make attempts to determine the passcode to access

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the SUBJECT DEVICE because Apple has written, or "coded," its

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operating systems with a user-enabled "auto-erase function" that

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would, if enabled, result in the permanent destruction of the

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required encryption key material after 10 failed attempts at the

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entering the correct passcode (meaning that, after 10 failed

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attempts, the information on the device becomes permanently

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inaccessible) .

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More to the point, the FBI

The information and data contained on the SUBJECT DEVICE is of

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particular concern to the government because, while evidence found on

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the iCloud account associated with the SUBJECT DEVICE indicates that

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Farook communicated with victims who were later killed during the

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In addition, SBCDPH has a written policy that all digital

devices are subject to search at any time by the SBCDPH, which
Farook accepted via signature upon employment.
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shootings on December 2, 2015, the backup iCloud data which the

government has been able to obtain for the account ends on October

19, 2015.

that Farook communicated with Malik using the SUBJECT "DEVICEE between

July and November 2015, but this information is not found in the

backup iCloud data.

communications and data prior to and around the time of the shooting

that thus far has not been accessed, may reside solely on the SUBJECT

DEVICE; and cannot be accessed by any other means known to either the

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In addition, toll records for the SUBJECT DEVICE establish

Accordingly, there may be critical

government or Apple.
When the government first realized that Apple retained the means

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to obtain that data from the SUBJECT DEVICE and that due to the way

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that Apple created the software Apple was the only means of obtaining

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that data, the government sought Apple's voluntary assistance.

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rejected the government's request, although it conceded that it had

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the technical capability to help.

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alternative, on February 16, 2016, the government applied for- and

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this Court subsequently issued - an Order pursuant to the All Writs

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Act, compelling Apple to assist the FBI in its search of the SUBJECT

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DEVICE.

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Apple

As a result, without any other

After the government served this Court's Order on Apple, Apple

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issued a public statement responding directly to the Order.

See

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Exhibit 1.

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lacks the technical capability to execute the Order, that it is not

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essential to gaining access into the iPhone, or that it would be too

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time- or labor-intensive.

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combination of: a perceived negative impact on its reputation and

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marketing strategy were it to provide the ordered assistance to the

In that statement, Apple again did not assert that it

Rather, Apple appears to object based on a

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 12 of 35 Page ID #:12

government, numerous mischaracterizations of the requirements of the

Order, and an incorrect understanding of the All Writs Act.

III. THE COURT SHOULD ISSUE AN ORDER COMPELLING APPLE TO COMPLY WITH
ITS ORDER REQUIRING ASSISTANCE WITH THE FBI'S SEARCH OF THE
SUBJECT DEVICE PURSUANT TO THE ALL WRITS ACT

This Court's All Writs Act Order is Lawful and Binding

A.

To the extent that Apple objects that the Court does not have

authority under the All Writs Act to compel Apple to assist in the

execution of a lawfully obtained search warrant, this objection fails

because the authority to require reasonable third-party assistance

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that is necessary to execute a warrant is well-established, and no

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provision of any other law or any judicial decision justifies

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limitation of that All Writs Act authority.

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comply with the Order would frustrate the execution of a valid

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warrant and thwart the public interest in a full and complete

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investigation of a horrific act of terrorism.

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To allow Apple not to

The All Writs Act

1.

The All Writs Act provides in relevant part that "all courts

18

established by Act of Congress may issue all writs necessary or

19

appropriate in aid of their respective jurisdictions and agreeable to

20

the usages and principles of law."

21

Supreme Court explained,

22

authority to issue writs that are not otherwise covered by statute."

23

Pennsylvania Bureau of Correction v. United States Marshals Service,

24

474 U.S. 34, 43

25

the power,

26

provide nonburdensome technical assistance to law enforcement

27

officers."

28

Cir. 1979)

(1985).

28 U.S.C.

1651(a).

As the

"[t]he All Writs Act is a residual source of

Pursuant to the All Writs Act, the Court has

"in aid of a valid warrant, to order a third party to

Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th
(citing United States v. New York Telephone Co., 434 U.S.
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Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 13 of 35 Page ID #:13

159 (1977)).

The All Writs Act permits a court, in its "sound

judgment," to issue orders necessary "to achieve the rational ends of

law" and "the ends of justice entrusted to it."

Co., 434 U.S. at 172-73 (citations and internal quotation marks

omitted) .

conformity with these principles."

v. Catoggio, 698 F.3d 64, 67 (2d Cir. 2012)

significant flexibility in exercising their authority under the

Act.")

New York Telephone

Courts must apply the All Writs Act "flexibly in

Id. at 173; accord United States
("[C]ourts have

(citation omitted) .

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In New York Telephone Co., the Supreme Court held that courts

11

have authority under the All Writs Act to issue supplemental orders

12

to third parties to facilitate the execution of search warrants.

13

Court held that "[t]he power conferred by the Act extends, under

14

appropriate circumstances, to persons who, though not parties to the

15

original action or engaged in wrongdoing, are in a position to

16

frustrate the implementation of a court order or the proper

17

administration of justice, ... and encompasses even those who have not

18

taken any affirmative action to hinder justice."

19

particular, the Court upheld an order directing a phone company to

20

assist in executing a pen register search warrant issued under Rule

21

41.

22

for an Order Authorizjng an In-Progress Trace of Wire Commc'ns over

23

Tel. Facilities (Mountain Bell), 616 F.2d 1122, 1132-33 (9th Cir.

24

1980)

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trace telephone calls, on grounds that "the obligations imposed

26

were reasonable ones."

27

172)).

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to tangible items but is sufficiently flexible to include within its

Id. at 174.

The

In

See id. at 171-76; see also In reApplication of United States

(affirming district court's order compelling Mountain Bell to

(citing New York Telephone Co., 434 U.S. at

New York Telephone Co. also held that "Rule 41 is not limited

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 14 of 35 Page ID #:14

scope electronic intrusions authorized upon a finding of probable

cause."

search warrant pursuant to Rule 41 to predicate an All Writs Act

order commanding a utility to implement a pen register and trap and

trace device

authorized pen registers by court order.

Co. and Mountain Bell, the Court had authority pursuant to the All

Writs Act to issue the Order.

434 U.S. at 169.

The Court relied upon the authority of a

before Congress had passed a law that specifically

Under New York Telephone

Further, based on the authority given under the All Writs Act,

10

courts have issued orders, similar to the one the Court issued here,

11

that require a manufacturer to attempt to assist in accessing a

12

cellphone's image files so that a warrant may be executed as

13

originally contemplated.

14

Inc. to Assist in the Execution of a Search Warrant Issued by This

15

Court by Unlocking a Cellphone (In re XXX), 2014 WL 5510865, at *2

16

(S.D.N.Y. Oct. 31, 2014); see also United States v. Navarro, No. 13-

17

CR-5525, ECF No. 39 (W.D. Wa. Nov. 13, 2013).

18

issued All Writs Act orders in support of warrants in a wide variety

19

of contexts, including ordering a phone company to assist with a trap

20

and trace device (Mountain Bell, 616 F.2d at 1129); ordering a credit

21

card company to produce customer records (United States v. Hall, 583

22

F. Supp. 717, 722

23

access to security camera videotapes (In re Application of United

24

States for an Order Directing X to Provide Access to Videotapes

25

(Access to Videotapes), 2003 WL 22053105, at *3

26

2003) (unpublished)); and ordering a phone company to assist with

27

consensual monitoring of a customer's calls (In reApplication of the

28

United States for an Order Directing a Provider of Communication

See,

e.g.,
In

re Order Requiring [XXX],

Courts have also

(E.D. Va. 1984)); ordering a landlord to provide

(D. Md. Aug. 22,

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 15 of 35 Page ID #:15

Services to Provide Technical Assistance to the DEA, 2015 WL 5233551,

at *4-5 (D.P.R. Aug. 27, 2015)).

multiple other unpublished orders in this district and across the

country compelling Apple to assist in the execution of a search

warrant by accessing the data on devices running earlier versions of

iOS, orders with which Apple complied. 5

Apple has long recognized this application, and has complied with

search warrants compelling Apple to extract data from older ios

devices locked with a passcode.

10
11

The government is also aware of

In fact, as noted above,

Until last year, Apple did not

dispute any such order.

In New York Telephone Co., the Supreme Court considered three

12

factors in concluding that the issuance of the All Writs Act order to

13

the phone company was appropriate.

14

company was not "so far removed from the underlying controversy that

15

its assistance could not be permissibly compelled."

16

Second, it concluded that the order did not place an undue burden on

17

the phone company.

18

assistance of the company was necessary to achieve the purpose of the

19

warrant.

20

the order issued in this case.

21
22
23
24
25
26
27
28

See id.

2.

First, it found that the phone

See id. at 175.

Id. at 174.

Third, it determined that the

As set forth below, each of these factors supports

Apple is not "far removed" from this matter

First, Apple is not "so far removed from the underlying

controversy that its assistance could not be permissibly compelled."
In litigation pending before a Magistrate Judge in the Eastern
District of New York, that court sua sponte raised the issue of
whether it had authority under the All Writs Act to issue a similar
order. That out-of-district litigation remains pending without any
issued orders, nor would any such order be binding on this Court.
In
any event, that litigation represents a change in Apple's willingness
to access iPhones operating prior iOS versions, not a change in
Apple's technical ability.
5

10

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 16 of 35 Page ID #:16

Apple designed, manufactured and sold the SUBJECT DEVICE, and wrote

and owns the software that runs the phone

preventing the search for evidence authorized by the warrant.

Indeed, Apple has positioned itself to be essential to gaining access

to the SUBJECT DEVICE or any other Apple device, and has marketed its

products on this basis.

www.apple.com/business/docs/iOS_Security_Guide.pdf.

and restricts access to the code for the auto-erase function

function that makes the data on the phone permanently inaccessible

See,

which software is

e.g.,Apple's

Security Guide,
Apple designed
the

10

after multiple failed passcode attempts.

11

prevents the government from performing the search for evidence

12

authorized by the warrant without Apple's assistance.

13

software Apple is uniquely able to modify also controls the delays

14

Apple implemented between failed passcode attempts

15

process take too long to enable the access ordered by the Court.

16

Especially but not only because iPhones will only run software

17

cryptographically signed by Apple, and because Apple restricts access

18

to the source code of the software that creates these obstacles, no

19

other party has the ability to assist the government in preventing

20

these features from obstructing the search ordered by the Court

21

pursuant to the warrant.

22

customer and that customer has created a passcode does not mean that

23

the close software connection ceases to exist; Apple has designed the

24

phone and software updates so that Apple's continued involvement and

25

connection is required.

26

This feature effectively

The same

which makes the

Just because Apple has sold the phone to a

Apple is also not made "far removed" by the fact that it is a

27

non-government third party.

While New York Telephone Co. and

28

Mountain Bell involved public utilities, limiting All Writs Act

11

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 17 of 35 Page ID #:17

orders to public utilities is inconsistent with the broad scope of

judicial authority under the All Writs Act.

emphasized that "the Company's facilities were being employed to

facilitate a criminal enterprise on a continuing basis[,]" and the

company's noncompliance "threatened obstruction of an investigation

which would determine whether the Company's facilities were being

lawfully used."

Circuit emphasized that its decision "should not be read to authorize

the wholesale imposition upon private, third parties of duties

434 U.S. at 174.

New York Telephone Co.

In Mountain Bell, the Ninth

10

pursuant to search warrants," 616 F.2d at 1132, but Apple is not a

11

random entity summoned off the street to offer assistance, nor is it

12

the target of the investigation.

13

and that design interferes with the execution of search warrants,

14

where it manufactured and sold a phone used by an ISIL-inspired

15

terrorist, where it owns and licensed the software used to further

16

the criminal enterprise, where it retains exclusive control over the

17

source code necessary to modify and install the software, and where

18

that very software now must be used to enable the search ordered by

19

the warrant, compulsion of Apple is permissible under New York

20

Telephone Co.

21

Where Apple designed its software

Moreover, other courts have directed All Writs Act orders based

22

on warrants to entities that are not public utilities.

For example,

23

neither the credit card company in Hall nor the landlord in Access to

24

Videotapes was a public utility.

25

Access to Videotapes, 2003 WL 22053105, at *3.

26

relationship to the iPhone and its software, both legally and

27

technically- which are the produce of Apple's own design- makes

See Hall, 583 F. Supp. at 722;

28
12

Apple's close

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 18 of 35 Page ID #:18

compelling assistance from Apple a permissible and indispensable

means of executing the warrant.

3.

The Order does not place an unreasonable burden on

Apple

The Order has also not placed any unreasonable burden on Apple.

Where, as here, compliance with the order would not require

inordinate effort, no unreasonable burden can be found.

Telephone Co., 434 U.S. at 175 (holding that All writs Act order was

not burdensome because it required minimal effort by the company and

See New York

10

provided for reimbursement for the company's efforts)

11

616 F.2d at 1132 (rejecting telephone company's argument that

12

unreasonable burden would be imposed because of a drain on resources

13

and possibility of system malfunctions because the "Order was

14

extremely narrow in scope, restricting the operation to [electronic

15

switching system] facilities, excluding the use of manual tracing,

16

prohibiting any tracing technique which required active monitoring by

17

company personnel, and requiring that operations be conducted 'with a

18

minimum of interference to the telephone service'").

19

Mountain Bell,

While the Order in this case requires Apple to provide or employ

20

modified software, modifying an operating system

21

essentially writing software code in discrete and limited manner

22

not an unreasonable burden for a company that writes software code as

23

part of its regular business.

24

code that may not now exist in the exact form required does not an

25

undue burden make.

which is
is

The simple fact of having to create

In fact, providers of electronic communications

26
27
28

Additionally, the Order provides that Apple may request

reasonable reimbursement for expenses incurred in complying with the
Order.
13

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 19 of 35 Page ID #:19

services and remote computing services are sometimes required to

write some amount of code in order to gather information in response

to subpoenas or other process.

All Writs Act has been compelled to provide something that did not

previously exist

pursuant to a search warrant.

F.Supp.2d 1232, 1237 (D. Co. 2012), a defendant's computer- whose

contents were encrypted

pursuant to the All Writs Act to assist the government in producing a

Additionally, assistance under the

the decryption of the contents of devices seized

In United States v. Fricosu, 841

was seized, and the defendant was ordered

10

copy of the unencrypted contents of the computer.

11

assistance does not even require Apple to assist in producing the

12

unencrypted contents; the assistance is rather to facilitate the

13

FBI's attempts to test passcodes.

14

Here, the type of

As noted above, Apple designs and implements all of the features

15

discussed, writes and cryptographically signs the iOS, routinely

16

patches security or functionality issues in its operating system, and

17

releases new versions of its operating system to address issues.

18

comparison, writing a program that turns off non-encryption features

19

that Apple was responsible for writing to begin with would not be

20

unduly burdensome.

21

have the technical ability to comply with the Order, or that the

22

Order asks Apple to undertake an unreasonably challenging software

23

development task.

By

At no point has Apple ever said that it does not

On this point, Apple's silence speaks volumes.

24

Moreover, contrary to Apple's recent public statement that the

25

assistance ordered by the Court "could be used over and over again,

26

on any number of devices" and that "[t]he government is asking Apple

27

to hack our own users," the Order is tailored for and limited to this

28

particular phone.

And the Order will facilitate only the FBI's

14

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 20 of 35 Page ID #:20

efforts to search the phone; it does not require Apple to conduct the

search or access any content on the phone.

the Order a threat to other users of Apple products.

maintain custody of the software, destroy it after its purpose under

the Order has been served, refuse to disseminate it outside of Apple,

and make clear to the world that it does not apply to other devices

or users without lawful court orders.

Order presents no danger for any other phone and is not "the

equivalent of a master key, capable of opening hundreds of millions

10
11

Nor is compliance with

Apple may

As such, compliance with the

of locks."
To the extent that Apple claims that the Order is unreasonably

12

burdensome because it undermines Apple's marketing strategies or

13

because it fears criticism for providing lawful access to the

14

government, these concerns do not establish an undue burden.

15

principle that "private citizens have a duty to provide assistance to

16

law enforcement officials when it is required is by no means foreign

17

to our traditions."

18

is not above the law in that regard, and it is perfectly capable of

19

advising consumers that compliance with a discrete and limited court

20

order founded on probable cause is an obligation of a responsible

21

member of the community.

22

discussed above, the Order requires Apple to assist only in

23

facilitating proper, legal access based on a finding of probable

24

cause.

25

encryption infrastructure or unlawfully violate the privacy of its

26

customers.

27

the government is seeking to use capabilities that Apple has

28

purposefully retained in a situation where the former user of the

New York Telephone 434 U.S. at 176 n.24.

The

Apple

It does not mean the end of privacy.

As

Further, the government is not seeking to "break" Apple's

Instead, through proper legal process through the Court,

15

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 21 of 35 Page ID #:21

phone is dead and no longer has any expectation of privacy in the

phone, and the owner of the phone consents both to the search of the

phone and to Apple's assistance thereto.

More generally, the burden associated with compliance with legal

process is measured based on the direct costs of compliance, not on

other more general considerations about reputations or the

ramifications of compliance.

For example, an All Writs Act order may be used to require the

production of a handwriting exemplar, see United States v. Li, 55

See In re XXX, 2014 WL 5510865, at *2.

10

F. 3d 325, 329 (7th Cir. 1995), even though the subject may face

11

criminal sanctions as a result of his compliance.

12

speculative policy concerns regarding possible consequences from

13

compliance with the Order in this matter merit little weight,

14

particularly when complying with a court order based on a warrant

15

serves the ends of justice and protects public safety in furthering

16

the investigative aims of a terrorism investigation.

17
18
19

4.

Apple's

Apple's assistance is necessary to effectuate the

warrant

Apple's assistance is also necessary to effectuate the warrant.

20

In New York Telephone Co., the Court held that the order met that

21

standard because "[t]he provision of a leased line by the Company was

22

essential to the fulfillment of the purpose

23

of those connected with the gambling operation -

24

register order had been issued."

25

here also meets this standard, as it is essential to ensuring that

26

the government is able to execute the warrant.

27
28

to learn the identities

for which the pen

434 U.S. at 175.

The Order issued

In this case, the ability to perform the search ordered by the

warrant on the SUBJECT DEVICE is of critical importance to an ongoing
16

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 22 of 35 Page ID #:22

terrorism investigation.

The user of the phone, Farook, is a mass

murderer who caused the death of a large number of his coworkers and

the shooting of many others, and who built bombs and hoarded weapons

for this purpose.

backups for the SUBJECT DEVICE, and executed a warrant to obtain all

saved iCloud data associated with the SUBJECT DEVICE.

the iCloud account indicates that Farook was in communication with

victims who were later killed during the shootings perpetrated by

Farook on December 2, 2015, and toll records show that Farook

The FBI has been able to obtain several iCloud

Evidence in

10

communicated with Malik using the SUBJECT DEVICE.

Importantly,

11

however, the most recent backup of the iCloud data obtained by the

12

government was dated October 19, 2015, approximately one and a half

13

months before the shooting.

14

communications and data around the time of the shooting that may

15

reside solely on the SUBJECT DEVICE and can only be obtained if the

16

government is able to search the phone as directed by the warrant.

17

Moreover, as discussed above, Apple's assistance is necessary

18

because without the access to Apple's software code and ability to

19

cryptographically sign code for the SUBJECT DEVICE that only Apple

20

has, the FBI cannot attempt to determine the passcode without fear of

21

permanent loss of access to the data or excessive time delay.

22

Indeed, after reviewing a number of other suggestions to obtain the

23

data from the SUBJECT DEVICE with Apple, technicians from both Apple

24

and the FBI agreed that they were unable to identify any other

25

methods - besides that which is now ordered by this Court - that are

26

feasible for gaining access to the currently inaccessible data on the

As such, there may be relevant, critical

27

28

17

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 23 of 35 Page ID #:23

SUBJECT DEVICE. 7

assistance is necessary, and that the Order was therefore properly

issued.
5.

4
5

There can thus be no question that Apple's

Apple's Potential Marketing Concerns Provide

Insufficient Grounds to Disregard a Duly Issued Court
Order Following a Warrant Based on a Finding of
Probable Cause

To the extent that Apple objects on the grounds that it would

undermine its marketing strategy to comply with this Court's Order,

or that it has an overall objection to anything that enables lawful

10

access by the government to encrypted information, the government

11

believes these objections are irrelevant and not legally cognizable

12

before this Court.

13

First, in this case, the government seeks to search the SUBJECT

14

DEVICE pursuant to a validly-issued search warrant, and a validly-

15

issued All Writs Act Order.

16

concern that "information needs to be protected from hackers and

The government shares Apple's stated

17

18
19
20
21
22
23
24
25
26
27
28

The four suggestions that Apple and the FBI discussed (and
their deficiencies) were: (1) to obtain cell phone toll records for
the SUBJECT DEVICE (which, while the government has of course done
so, is insufficient because there is far more information on the
SUBJECT DEVICE than simply toll records); (2) to determine if any
computers were paired with the SUBJECT DEVICE to obtain data (which
the government has determined that none were); (3) to attempt an
auto-backup of the SUBJECT DEVICE with the related iCloud account
(which would not work in this case because neither the owner nor the
government knew the password to the iCloud account, and the owner, in
an attempt to gain access to some information in the hours after the
attack, was able to reset the password remotely, but that had the
effect of eliminating the possibility of an auto-backup) ; and (4)
obtaining previous back-ups of the SUBJECT DEVICE (which the
government has done, but is insufficient because these backups end on
October 19, 2015, nearly one-and-a-half months prior to the IRC
shooting incident, and also back-ups do not appear to have the same
amount of information as is on the phone itself). After subsequent
conversations, though, Apple conceded that none of these suggestions
would work to execute the search warrant or to sufficiently obtain
the information sought.
18

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 24 of 35 Page ID #:24

criminals who want to access it, steal it, and use it without our

knowledge or permission."

not compromise that interest.

the owner and user of this particular device against unauthorized or

unlawful access

accessing it.

government "intercept [ing]

health records or financial data, track[ing]

even access [their] phone's microphone or camera without [their]

See Exhibit 1.

The Order at issue does

This is not a situation of protecting

here, the owner consented to the government

Nor is it about protecting Apple's customers from the
[their] messages, access [ing]

[their]

[their] location, or

10

knowledge" or from "hackers and criminals who want to access

11

[personal information], steal it, and use it without our knowledge or

12

permission."

13

based on a finding of probable cause, approved by this Court,

14

permitting the government to search one telephone of an individual

15

suspected of being involved in a terrorist attack that killed 14

16

Americans and wounded 22 others on our own soil, the other directing

17

Apple to provide limited assistance it is uniquely qualified to

18

provide to effectuate that order.

19

What is at stake are two judicially issued orders: one

Second, the assistance ordered is not a "back door" or a "hack"

20

to all of Apple's encryption software.

That is an unwarranted and

21

inaccurate characterization.

22

application for the All Writs Act Order, the government asks that

23

Apple assist in the execution of a search warrant using the

24

capabilities that Apple has retained along within its encryption

25

software, such that the government can attempt to determine the

26

passcode without the additional, non-encryption features that Apple

27

has coded into its operating system, for the SUBJECT DEVICE only.

28

sum, the government seeks the ability to make multiple attempts at

As was made plain in the government's

19

In

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 25 of 35 Page ID #:25

determining the passcode without risk that the data subject to search

under the warrant would be rendered permanently inaccessible after 10

wrong attempts.

what a user has the ability to do if the auto-erase function is

turned off.

or a provision of dangerous malware than any update Apple or other

providers send to a phone.

software requested would not reside permanently on the SUBJECT

DEVICE, and Apple can retain control over it entirely.

This aspect of the Order is no more or less than

Moreover, the software required is no more of a "hack"

Indeed, it is less so because the

The Order

10

does nothing regarding the encryption aspect of the operating

11

software, but instead implicates only the non-encryption additional

12

features that Apple has programmed.

13

Moreover, to the extent that Apple has concerns about turning

14

over software to the government so that the government can run the

15

passcode check program, the Order permits Apple to take possession of

16

the SUBJECT DEVICE to load the programs in its own secure location,

17

similar to what Apple has done for years for earlier operating

18

systems, and permit the government to make its passcode attempts via

19

remote access.

20

existing operating systems and software, no one outside Apple would

21

have access to the software required by the Order unless Apple itself

22

chose to share it.

23

required by the Order would go into the "wrong hands" and lead to

24

criminals' and bad actors'

25

someone's physical possession."

26

In this fashion,

just as with Apple's own already-

This eliminates any danger that the software

"potential to unlock any iPhone in

Third, marketing or general policy concerns are not legally

27

cognizable objections to the Order.

28

of whether a court order presents an unreasonable burden is focused

20

As discussed above, the analysis

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 26 of 35 Page ID #:26

on the direct costs of compliance, not whether the party strongly

disagrees with the concept of complying.

entertain an argument that fulfilling basic civic responsibilities of

any American citizen or company - complying with a lawful court order

- could be obviated because that company prefers to market itself as

providing privacy protections that make it infeasible to comply with

court-issued warrants.

6.

This Court should not

Public Policy Favors Enforcing of the Order

Strong public policy interests favor enforcing the All Writs Act

10

Order in this matter.

11

emphasized "the clear indication by Congress that the pen register is

12

a permissible law enforcement tool."

13

matter involves the most fundamental investigative tool of all, the

14

search warrant.

15

and explicitly endorsed by Congress.

16

Warrants shall issue, but upon probable cause"); 18 U.S.C.

17

("a warrant may be issued to search for and seize any property that

18

constitutes evidence of a criminal offense").

19

California, 134 S. Ct. 2473, 2495 (2014), the Supreme Court set the

20

standard for what law enforcement must do to search a cell phone

21

seized incident to arrest:

22

has obtained a warrant to search the phone of a mass murderer, but

23

unless this Court enforces the Order requiring Apple's assistance,

24

the warrant will be meaningless.

25
26
27
28

B.

In New York Telephone Co., the Supreme Court

434 U.S. at 176.

Here, this

Its use is enshrined in the text of the Constitution

See U.S. Const. amend. IV ("no

"get a warrant."

3103a(a)

Recently, in Riley v.

Here, the government

Congress has Not Limited this Court's Authority to Issue an

All Writs Act Order to Apple

Based on the government's discussions with Apple, Apple's public

statement, and the litigation pending in the Eastern District of New
21

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 27 of 35 Page ID #:27

York, it appears Apple is arguing that it is justified in refusing to

comply with the Order because the All Writs Act has been limited by

Congress.

specifically addresses the issue of Apple's assistance, and the

absence of such a specific statute cannot be read as a decision to

limit existing authority.

execution of this court's jurisdiction in this matter.

1.

8
9

10
11
12
13

14
15
16
17
18
19

20
21
22
23
24

25
26
27

28

This argument fails because there is no statute that

Thus, the Order was an appropriate

No statute addresses data extraction from a passcodelocked cell phone

The Supreme Court has made clear that "[t]he All Writs Act is a
residual source of authority to issue writs that are not otherwise
covered by statute[,]" such that courts may not rely on the All Writs
Act "[w]here a statute specifically addresses the particular issue at
hand[.]"

Pennsylvania Bureau of Correction, 474 U.S. at 43.

In this

case, no other statute addresses the procedures for requiring Apple

to extract data from a passcode-locked iPhone, so Pennsylvania Bureau
of Correction provides no basis for denying the government's
application for an All Writs Act Order in this case.
In particular, neither Federal Rule of Criminal Procedure 41 nor
the Communications Assistance for Law Enforcement Act ("CALEA"), 47
U.S.C.

1002,

"specifically addresses" - or even vaguely addresses

the duty of Apple to assist in extracting data from a passcode-locked

cell phone in order to permit the government to execute a validly
issued search warrant.

CALEA requires telecommunications carriers to

retain the capability to comply with court orders for real-time

interceptions and call-identifying information (data "in motion")

For example, for the contents of communications, CALEA

requires telecommunications carriers to be able "to intercept" wire
(footnote cont'd on next page)
22
8

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 28 of 35 Page ID #:28

Id.

cell phone (data "at rest").

telecommunications carrier, and the Order concerns access to stored

data rather than real-time interceptions and call-identifying

information.

present dispute and does not limit this Court's authority under the

All Writs Act to require Apple to assist the government in executing

a search warrant.

By contrast, this case involves evidence already stored on a

Here, Apple is not acting as a

Put simply, CALEA is entirely inapplicable to the

New York Telephone Co. further illustrates that it is

10

appropriate for a

11

specifically addresses the particular issue at hand.

12

decided New York Telephone Co. in 1977, Congress had enacted Title

13

III for intercepting the contents of communications, but it had not

14

yet enacted the closely-related pen register statute for acquiring

15

non-content information.

16

of 1986

17

Despite the existence of a statute regulating government access to

18

information closely related to pen registers, but not specifically

court

to rely on the All Writs Act unless a statute

When the Court

See Electronic Communications Privacy Act

301, 100 Stat. 1848 (enacting pen register statute).

19
20
21
22
23
24
25
26
27
28

and electronic communications carried by the carrier. 47 U.S.C.

1002 (a) (1) .
CALEA incorporates the definition of "intercept" from
the Wiretap Act, see 47 U.S.C. 1001(1) & 18 u.s.c. 2510(4), and
that definition encompasses only information acquired during
transmission, not while it is in storage.
Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868, 877-878 (9th Cir. 2002).
Furthermore, nothing in CALEA prevents a court from ordering a
telecommunications carrier to decrypt communications that the carrier
is capable of decrypting. See 47 U.S.C. 1002 (b) (3). When Congress
enacted CALEA, it understood that existing provider-assistance
provisions required a provider to decrypt communications when it was
able to do so. Both the House and Senate reports for CALEA stated
that "telecommunications carriers have no responsibility to decrypt
encrypted communications that are the subject of court-ordered
wiretaps, unless the carrier provided the encryption and can decrypt
it." H.R. Rep. No. 103-827(I), at 24 (1994); S. Rep. No. 103-402, at
24 (1994).
9

23

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 29 of 35 Page ID #:29

addressing pen registers, the Supreme Court held that an All Writs

Act order could be issued in support of a warrant for a pen register.

Under this reasoning, CALEA is no barrier to the Order in this case.

5
6

7
8
9

10
11
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Congressional inaction does not deprive courts of

their authority under the All Writs Act

2.

The current lack of congressional action regarding encryptionrelated issues does not deprive this Court of its authority to issue
the Order in this case.

Under Pennsylvania Bureau of Correction,

courts may not rely on the All Writs Act where "a statute
specifically addresses" an issue.

But the opposite is not true.

Courts may not categorically refuse to rely on the All Writs Act
Apple would seemingly want the Court to do
declined to legislate.

as

where Congress has

Court authority to issue All Writs Act orders

in support of warrants has been clearly established since the Supreme

Court decided New York Telephone Co. in 1977.

Congress may choose to

expand or limit this authority, but it must do so through enactment

of legislation.
The Supreme Court and the Ninth Circuit have repeatedly
cautioned that "Congressional inaction lacks persuasive significance
because several equally tenable inferences may be drawn from such
inaction[.]"

General Construction Company v. Castro, 401 F.3d 963,

970-71 (9th Cir. 2005)

(quoting Central Bank of Denver v. First

Interstate Bank of Denver, 511 U.S. 164, 187 (1994))

see also United

States v. Craft, 535 U.S. 274, 287 (2002).

Here, there are many possible explanations for congressional
inaction on encryption, including that Congress is satisfied with
existing authorities, or that Congress has not yet reached agreement
on whether or how much to expand existing authorities.
24

These

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 30 of 35 Page ID #:30

possibilities provide no basis for restricting legal authorities that

existed before the beginning of the debate.

lose an authority to issue orders under the All Writs Act merely

because Congress does not subsequently enact legislation endorsing or

expanding that authority, this Court retains authority to issue an

All Writs Act Order ccnsistent with New York Telephone Co.

IV.

10

Because courts do not

CONCLUSION

This Court issued a valid Order pursuant to the All Writs Act

requiring Apple to assist the United States in enabling the search

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for evidence pursuant to a lawful search warrant.

Apple has publicly

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stated that it will oppose this Order, and has not agreed to comply.

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For the foregoing reasons, the government respectfully requests that

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this Court issue an Order compelling Apple to comply.

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Granting legal force to statements or proposals by individual

members of Congress during the course of congressional debate risks
absurd results.
Congress routinely debates and fails to act on
important issues, but the mere debate does not restrict existing
legal authority. Under the Constitution, Congress speaks with legal
force only when it speaks as one body, through bicameralism and
presentment- i.e. when it passes a bill.
25

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 31 of 35 Page ID #:31

EXHIBIT 1

Customer
Letter- Apple
Page
I of3
Case 5:16-cm-00010-SP
Document 1 Filed 02/19/16 Page 32 of 35 Page ID
#:32

February 16, 2016

A Message to Our Customers

The United States government has demanded that Apple take an
unprecedented step which threatens the security of our customers. We
oppose this order, which has implications far beyond the legal case at hand.
This moment calls for public discussion, and we want our customers and
people around the country to understand what is at stake.

The Need for Encryption

Smartphones, led by iPhone, have become an essential part of our lives. People use them to store an
incredible amount of personal information, from our private conversations to our photos, our music,
our notes, our calendars and contacts, our financial information and health data, even where we have
been and where we are going.
All that information needs to be protected from hackers and criminals who want to access it, steal it,
and use it without our knowledge or permission. Customers expect Apple and other technology
companies to do everything in our power to protect their personal information, and at Apple we are
deeply committed to safeguarding their data.
Compromising the security of our personal information can ultimately put our personal safety at risk.
That is why encryption has become so important to all of us.
For many years, we have used encryption to protect our customers' personal data because we believe
it's the only way to keep their information safe. We have even put that data out of our own reach,
because we believe the contents of your iPhone are none of our business.

The San Bernardino Case

We were shocked and outraged by the deadly act of terrorism in San Bernardino last December. We
mourn the loss of life and want justice for all those whose lives were affected. The FBI asked us for
help in the days following the attack, and we have worked hard to support the government's efforts to
solve this horrible crime. We have no sympathy for terrorists.
When the FBI has requested data that's in our possession, we have provided it. Apple complies with
valid subpoenas and search warrants, as we have in the San Bernardino case. We have also made
Apple engineers available to advise the FBI, and we've offered our best ideas on a number of
investigative options at their disposal.
We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to
this point, we have done everything that is both within our power and within the law to help them. But
now the U.S. government has asked us for something we simply do not have, and something we
consider too dangerous to create. They have asked us to build a backdoor to the iPhone.

http://www.apple.com/customer-letter/

2/17/2016

Customer
Letter - Apple
Page
2 of3
Case 5:16-cm-00010-SP
Document 1 Filed 02/19/16 Page 33 of 35 Page ID
#:33

Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing
several important security features, and install it on an iPhone recovered during the investigation. In
the wrong hands, this software- which does not exist today -would have the potential to
unlock any iPhone in someone's physical possession.
The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS
that bypasses security in this way would undeniably create a backdoor. And while the government
may argue that its use would be limited to this case, there is no way to guarantee such control.

The Threat to Data Security

Some would argue that building a backdoor for just one iPhone is a simple, clean-cut solution. But it
ignores both the basics of digital security and the significance of what the government is demanding in
this case.
In today's digital world, the "key" to an encrypted system is a piece of information that unlocks the
data, and it is only as secure as the protections around it. Once the information is known, or a way to
bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.
The government suggests this tool could only be used once, on one phone. But that's simply not true.
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.
The government is asking Apple to hack our own users and undermine decades of security
advancements that protect our customers - including tens of millions of American citizens- from
sophisticated hackers and cybercriminals. The same engineers who built strong encryption into the
iPhone to protect our users would, ironically, be ordered to weaken those protections and make our
users less safe.
We can find no precedent for an American company being forced to expose its customers to a greater
risk of attack. For years, cryptologists and national security experts have been warning against
weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on
companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that
are readily available to them.

A Dangerous Precedent
Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented
use of the All Writs Act of 1789 to justify an expansion of its authority.
The government would have us remove security features and add new capabilities to the operating
system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone
by "brute force," trying thousands or millions of combinations with the speed of a modern computer.
The implications of the government's demands are chilling. If the government can use the All Writs Act
to make it easier to unlock your iPhone, it would have the power to reach into anyone's device to
capture their data. The government could extend this breach of privacy and demand that Apple build
surveillance software to intercept your messages, access your health records or fmancial data, track
your location, or even access your phone's microphone or camera without your knowledge.
Opposing this order is not something we take lightly. We feel we must speak up in the face of what we
see as an overreach by the U.S. government.

http://www.apple.com/customer-letter/

2/17/2016

Customer
Letter - Apple
Page
3 of3
Case 5:16-cm-00010-SP
Document 1 Filed 02/19/16 Page 34 of 35 Page ID
#:34

We are challenging the FBI's demands with the deepest respect for American democracy and a love
of our country. We believe it would be in the best interest of everyone to step back and consider the
implications.
While we believe the FBI's intentions are good, it would be wrong for the government to force us to
build a backdoor into our products. And ultimately, we fear that this demand would undermine the very
freedoms and liberty our government is meant to protect.

Tim Cook

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http://www.apple.com/customer-letter/

2/17/2016

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 35 of 35 Page ID #:35

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CERTIFICATE OF SERVICE
I, REBECCA EVANS, declare:
That I am a citizen of the United States and resident or employed in Riverside

County, California ; that my business address is the Office of United States Attorney , 3403

Tenth Street, Suite 200, Riverside , CA 92501 ; that I am over the age of eighteen years , and

am not a party to the above-entitled action ; That I am employed by the United States

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Attorney for the Central District of California who is a member of the Bar of the United States
District Court for the Central District of California, at whose direction I served a copy:

GOVERNMENT'S MOTION TO COMPEL APPLE INC. TO COMPLY WITH THIS COURT'S

FEBRUARY 16,2016 ORDER COMPELLING ASS ISTANCE IN SEARCH; EXHIBIT
[X] By electronic mail as follows :

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Mr. Theodore B. Olson

Gibson , Dunn & Crutcher LLP
tolson@gibsondunn .com

Mr. Theodore J. Boutrous Jr.

Gibson , Dunn & Crutcher LLP
tboutrous@gibsondunn.com

Ms . Nicola T. Hanna
Gibson , Dunn & Crutcher LLP
nhanna@gibsondunn .com

Mr. Eric D. Vandevelde

Gibson , Dunn & Crutcher LLP
evandevelde@gibsondunn .com

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This Certificate is executed on February 19, 2016 , in Riverside, California .

certify under penalty of perjury that the foregoing is true and correct.