Apple v. Department of Justce: A Look at Privacy Rights in the Modern World

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Revelations that the Department of Justice (DOJ) in mid-March with the help of an undisclosed tech company discovered an access vulnerability and new method to unlock the Apple iPhone 5C used by one of the San Bernardino terrorists only delays the day of reckoning with respect to the significant security and privacy issues raised by the Apple litigation. The litigation has disclosed that nationwide there have been over 70 cases involving the issue of unlocking an Apple iPhone passcode with 12 cases in active litigation mode involving the same issue, with various phone versions. Accordingly, the proverbial 800 pound gorilla in the courtroom is still there—the issue of whether the All Writs Act (AWA) of 1789, 28 U.S.C. §1651(a), may be used by the government to compel Apple to unlock an iPhone passcode by creating a program or so called “backdoor” for law enforcement access to it to obtain needed evidence of a crime on the phone. The complexity of the issues involved are reflected in the conflicting conclusions on essentially the same legal questions by two federal courts, one in San Bernardino, and the other in Brooklyn.¹ This article will address the major issues raised in these cases.

The Basics

In the California litigation, The FBI obtained possession of a locked iPhone used by one of the San Bernardino terrorists recovered from an automobile a day after the deadly attack in San Bernardino on Dec. 3, 2015. The phone was discovered by investigators while executing a search warrant for the terrorist’s car. The phone was locked with a passcode that one of the shooters apparently chose. The FBI believed that the phone could have information to assist in explaining the motive for the attack and help determine if there were any others involved in the plot to attack the County Center. The federal government was unable to determine the passcode and thereafter obtained an order from Magistrate Judge Sheri Pym of the U.S. District Court for the Central District of California requiring Apple to assist it in cracking into the iPhone. Although this appeared to be a routine application because Apple had assisted the FBI on prior occasions with unlocking other phones, Apple balked at rendering assistance on this occasion—despite that the legal owner of the phone was the San Bernardino County Health Department, the terrorist’s employer, that had consented to the search of the phone.

The California Case and the All Writs Act. In applying to the court for an order to crack the passcode of the iPhone 5C, the government did not use the search warrant statute, or a subpoena, but instead the All Writs Act of 1789, 28 U.S.C. §1651(a). The search warrant statute was not applicable, as a search warrant must be directed to evidence in existence; instead, the subject of the order was an unknown passcode. Case law dealing with anticipatory search warrants was of no assistance, as anticipatory warrants are usually directed to evidence in existence that has not yet been delivered to a certain subject location. On the other hand, the All Writs Act ostensibly appeared the appropriate legal vehicle as it permits federal courts to issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” “The power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice.” Nevertheless, Apple contested the government’s use of the All Writs Act, arguing, inter alia, that the question of whether it should be compelled to create a backdoor accessing its own operating system to assist law enforcement was a political question to be determined by Congress and not a legal one for the court.

Brooklyn Federal Case. The Brooklyn federal case involves an Apple iPhone 5S using Apple’s iOS7 operating system. It was seized in June 2014 as part of a narcotics investigation by DEA agents targeting a Queens methamphetamine trafficker who later pled guilty in October of 2015. Nevertheless, the government sought the phone evidence to prove a narcotics conspiracy and identify others, including customers and sources of drugs. A search warrant was issued to download the evidence on the phone, but again, similar to the case in California, the government was unable to bypass the iPhone’s passcode security. Thereafter, the government submitted an application to U.S. Magistrate Judge James Orenstein to compel Apple to unlock the phone’s passcode using the All Writs Act as the legal vehicle.

Judge Orenstein rejected the government’s assertion that the All Writs Act be used to force Apple to create the passcode that protected the iOS7 phone. Instead, Orenstein determined that legislative non-action was a bar to compelling Apple to create a passcode. Orenstein read a legislative choice not to empower the government to act as a basis for his limited reading of the application of the All Writs Act. He determined not to confer authority where Congress had considered and not acted upon the matter, finding that the use of the Act would be inconsistent with the Act’s premise that it be “agreeable to the usages and principles of law.” Orenstein’s decision conflicted with California Judge Pym’s decision compelling Apple to provide reasonable technical assistance to aid the FBI in accessing the terrorist’s iPhone.

Judge Orenstein determined that the specific issue before him was one of balancing privacy and public safety, one that he believed best suited for Congress. He stated: “It would betray our constitutional heritage and our people’s claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789.”

Unprecedented Limits and Residual Authority. The government disagreed with Judge Orenstein’s ruling, asserting that his ruling placed an “unprecedented new limit” on the court’s power. The government asserted that the court was mistaken in its interpretation by concluding that the All Writs Act relief is barred in a scenario where Congress has merely considered and decided not to enact a law conferring the requested authority. The government referred to the AWA as a gap filling statute to fill in the holes not covered by the Communications for Law Enforcement Act of 1994 (CALEA), which focuses on telecommunications carriers.

Nevertheless, in the government’s pending appeal to U.S. District Court Judge Margo Brodie, the government urged that the All Writs Act permitted decryption- a proposition that other judges have recognized and that Apple had gone along with before “public relations concerns prompted it to object.” Moreover, the government contended that the “residual authority” under the All Writs Act is particularly important in an area like this, where legislation inevitably lags behind technology or risks obsolescence and in no way upends the balance between privacy and security because the Constitution already struck the balance in the Fourth Amendment. The government continued that requiring Apple to assist the government simply enables the court to ensure that its warrant has meaning.

Furthermore, the government rejected Apple’s objection by saying that it “appears to be based on its concern for its business model and public brand marketing strategy,” and that writing new code shouldn’t be an “undue burden”—one of the standards for applying the All Writs Act. The government cited in support United States v. New York Telephone Company, a 1977 pre-digital-world case decided by the U.S. Supreme Court that involved pen registers, devices that recorded dialed digits in landline telephones. In that case, the FBI wanted New York Telephone, which assisted the FBI in electronic surveillance (wiretapping) of an illegal-gambling location in Manhattan, to allow it to use spare cables that were, physically, in the same terminal box as those hooked up to the suspect’s phone. The telephone company balked and contended that FBI should obtain its own equipment and find its own place in the vicinity to install it. After canvassing the likely locations to install its own equipment, the FBI determined that the presence of their wiretapping equipment could be discovered by the targets or their agents, and therefore objected to New York Telephone’s refusal to provide assistance. The U.S. Supreme Court determined that the court could legitimately ask the telephone company for its technical help and “facilities” pursuant to the AWA because, among other reasons, the burden on New York Telephone company was minimum. New York Telephone was in the business of providing and leasing the equipment sought. Judge Orenstein found that the assistance mandated in New York Telephone, though, was a far cry from that which the government requested in the case before him. The telephone company, a closely regulated public utility, did not have to create devices or a program that it did not have, and the burden on it to assist the FBI was minimal. Apple, on the other hand is a private company answerable to its shareholders, and asserted that the heavy burden on it to create a program was not only financial in nature but impacted its company brand and reputation as an entity that respected and protected the privacy rights of its customers.

First, Fourth and Fifth Amendment Arguments. The iPhone at issue in the California litigation was found by investigators executing a search warrant for a terrorist’s car. The owner of the phone was the San Bernardino County Health Department, the terrorist’s employer. The County consented to the search of the phone. No one with legal standing came forward to assert Fourth Amendment protection with respect to the phone. Accordingly, in an attempt to assert the Fourth Amendment as a shield, Apple argued that the Fourth Amendment protected it against government compulsion, contending that the impact of the forced creation of back door technology by it for the government in light of continuing related advances in technology would lead to more intrusive and sophisticated government investigative tools nullifying Fourth Amendment protections.

Apple’s argument was expanded in its appeal to the public, which included an “open letter” stating that “the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create.” Apple argued that the danger is that such a back door, while allowing the government to successfully evade the encryption, would also allow others the same evasive techniques and thereby make everyone more vulnerable to terrorists and hackers alike. The government’s argument was undermined by the Administration last year reversing course on possible legislation compelling the creation of back doors, and in explaining its turnabout referred to the possibility that a backdoor may give unfriendly countries an opportunity to circumvent Apple passcodes.

Apple also asserted First and Fifth Amendment protections in its claims that in order to comply with the government’s demands it would need to create a new “GovtOs” to crack into the phones. The First Amendment argument was that the computer code is considered speech, and that it wrote computer code to protect data on its products because of its views on consumer privacy. Apple contended that by forcing Apple to write software that would undermine those values, it is forced to abide by the government’s view on security and privacy. The government responded that the phone is part of an important investigation and that the government request was narrowly tailored and did not threaten the privacy of other Apple customers. The government’s response was summarized simply by FBI Director James Comey’s testimony before Congress: “I’m a big fan of privacy; I love encryption … But if we get to a place in American life where certain things are immune from a judge’s order, then we are in a very different world.”

In the California litigation, Apple contended that the government was asking the court to order Apple to give the government something that it didn’t own. The parties admitted that Apple had previously given significant technical assistance in the San Bernardino investigation, for instance, in response to a separate warrant, it gave the FBI the iCloud back-ups for the terrorist’s phone. Furthermore, in the past, in response to court orders, Apple helped the government extract certain specific information from older iPhones as many as 70 times. But Apple contended it was unable to do so on the newer operating system—iOS 9—on the terrorist’s phone, which was built without a “back door.”

Apple argued that the government’s request was not a limited one for a signature or even for the equivalent of a handwriting guide but for an entire ready-to-run software package. On the other hand, the government claimed that it wanted limited assistance which it would pay for, that is, Apple would use a code that would make the software bundle only usable on the terrorist’s phone. Apple responded that that was not an accurate description of what it actually had to do to access its phone. Judge Pym²⁰ ordered Apple to create software that would permit the FBI a point of access.

Contact the experienced in the Business Law Group at Maya Murphy, P.C. today at (203) 221-3100 or at JMaya@Mayalaw.com.

Source: New York Law Journal