From In Re Order Requiring Apple, Inc. To Assist in the Execution of a Search Warrant Issued by this Court (United States District Court, Eastern District of New York)
James Orenstein, Magistrate Judge:
In a sealed application filed on October 8, 2015, the government asks the court to issue an order pursuant to the All Writs Act, 28 U.S.C. § 1651, directing Apple, Inc. (“Apple”) to assist in the execution of a federal search warrant by disabling the security of an Apple device that the government has lawfully seized pursuant to a warrant issue by this court. Law enforcement agents have discovered the device to be locked, and have tried and failed to bypass that lock. As a result, they cannot gain access to any data stored on the device notwithstanding the authority to do so conferred by this court’s warrant Application at 1. For the reasons that follow, I defer ruling on the application and respectfully direct Apple to submit its views in writing, not later than October 15, 2015, as to whether the assistance the government seeks is technically feasible and, if so, whether compliance with the proposed order would be unduly burdensome. If either the government or Apple wishes to present oral arguments on the matter, I will hear such argument on October 22, 2015, at 12:00 noon.
Non-lawyers may find the analysis of the All Writs Act a bit tedious but the opinion picks up speed in dealing with the government’s contention that the pen register decision (the recording of phone numbers dialed from a phone) in United States v. New York Tel. Co., 434 U.S. 159 (1977), supports their request.
To summarize the differences found by Judge Orenstein:
- Apple manufactured the device but unlike New York Tel. Co. (Telephone Company), Apple doesn’t own it.
- Apple is not a regulated utility with a duty to serve the public. It can make a deliberate decision to favor its customers over the needs of law enforcement (in the absence of statutes to the contrary).
- In the Telephone Company case, there was no practical alternative to security the information. Here the government can attempt to coerce the owner of the phone, for instance.
- Congressional legislation had attempted to require telephone companies to provide the assistance sought and such legislation is absent, even opposed in Congress for unlocking secure devices.
If Apple has done its encryption properly, then even intimate knowledge of the encryption program should not enable Apple to unlock the device in question.
One hopes Apple will prove to the court’s satisfaction that once locked, even Apple cannot assist in the unlocking of such a device.
The government’s request is one borne of ignorance of basic encryption technology.
I first saw this in a tweet by Morgan Marquis-Boire.
PS: Should at some point the court’s opinion “go away,” write and ask for “apple-unlock-gov.uscourts.nyed.376325.2.0.pdf.”