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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

15MISC 1901

---------------------------------------------------------X
IN RE ORDER REQUIRING APPLE, INC.
TO ASSIST IN THE EXECUTION OF A
SEARCH WARRANT ISSUED BY THIS
COURT.

MEMORANDUM
AND ORDER
15-MC-_QO)

---------------------------------------------------------X
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 issued 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, no 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 argument on
the matter, I will hear such argument on October 22, 2015, at 12:00 noon.
The first step in analyzing the application is to determine whether the All Writs Act empowers
a court to provide the relief the government seeks. In partial support of its application, the government
offers the following quotation: "[t]he All Writs Act is a residual source of authority to issue writs that
are not otherwise covered by statute. 11 J>en11sylva11ia B11rea11 ofCome/ion v. U11ited Stales Marshals Sero., 474
U.S. 34, 43 (1985) (quoted in Application at 2). That quotation omits, however, the important
qualification that immediately follows it in the same opinion:
Where a statute specifically addresses the particular issue at hand, it is that authority,
and not the All Writs Act, that is controlling. Although that Act empowers federal
courts to fashion extraordinary remedies when the need arises, it does not authorize

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them to issue ad hoc writs whenever compliance with statutory procedures appears
inconvenient or less appropriate.

Id.
Thus, the question becomes whether the government seeks to fill in a statutory gap that
Congress has failed to consider, or instead seeks to have the court give it authority that Congress chose
not to confer. In a recent article, United States Representative Peter T. King has aptly summarized the
pertinent legislative history in this regard:
Since the 1990s law enforcement has raised concerns that emerging technologies such
as digital and wireless communications made it increasingly difficult to conduct court
authorized surveillance. At the request of Congress, the Government Accountability
Office examined the increasing use of digital technologies in public telephone systems,
and found it to be a factor that could potentially inhibit the FBI's wiretap capabilities.
To help law enforcement maintain the ability to execute authorized electronic
surveillance, Congress enacted the Communications Assistance for Law Enforcement
Act [Pub. L. No. 103-414, 108 Stat. 4279, codtfied at47 U.S.C. §§ 1001-1010
("CALEA")].
CALEA requires telecom carriers to ensure that if they enable customers to
communicate, they will enable law enforcement to conduct court-ordered surveillance.
CALEA's requirements were administratively expanded by the FCC in 2006 to apply
to broadband Internet access and Voice-Over-Internet-Protocol providers. This rule
was subsequently upheld as reasonable by a U.S. Court of Appeals in 2006. However,
CALEA's requirements did not cover electronic mail, instant messaging, peer-to-peer
communications, or social media.

In 2007 Apple introduced the iPhone, the first widely adopted smart phone, capable of
communicating across a number of different platforms, and storing large pieces of
data including photographs and video. CALEA is not vie111ed as app!Jing lo data contained 011
sn1artphones, and there has been agreat deal ofdebate abo11t 111hether ii sho11/d be expanded lo cover this
content.
In 2009, the FBI briefed Congress about the "Going Dark" problem, and drafted
legislation to amend CALEA to cover internet companies such as Apple, Facebook,
Google, and Twitter that developed communications technologies not covered under
the current act.

Draft legislation sought by the FBI was approved by the Justice Department, but ...
never sent ... to Capitol Hill. A representative for Senator Patrick Leahy, then

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chainnan of the Senate Judiciary Committee and an original co-sponsor of CALEA,
said in 2012 that, "we have not seen any proposals from the Administration." ...

As a Senator, Vice-President Biden introduced the Comprehensive
Counter-Terrorism Act of 1991, a bill that corresponded to the FBI's current CALEA
refonn proposals. That bill provided that companies should "ensure that
communications systems pennit the government to obtain the plain text contents of
voice, data, and other communications when appropriately authorized by law." ...

Under an amended CALEA regime, if a court order is required today, one will be
required tomorrow as well. The substantive Fourth Amendment law and the Federal
Rules of Criminal Procedure and Evidence will not change. The point of amending
CALEA is only to make sure that if a wiretap is duly authorized by a judge, it can
practically be executed. The sub rosa communications of criminals and terrorists must
be legally exploitable by the FBI in order to bring them to justice.
Appearing before my Subcommittee on Counterterrorism and Intelligence,
International Association of Chiefs of Police (IACP) President Richard Beary testified
about the challenges facing police departments across the country: "Unfortunately,
those of us who are charged with protecting the public aren't always able to access the
evidence we need to prosecute crime and prevent terrorism even though we have the
lawful authority to do so. We have the legal authority to intercept and access
communications and information pursuant to appropriate legal processes, but we lack
the technological ability to do so." He added, "The law hasn't kept pace with
technology, and this disconnect has created a significant public safety problem, which
is what we mean when we refer to 'Going Dark. 111
Chief Beary noted that, "Law enforcement is not seeking broad new surveillance
capabilities above and beyond what is currently authorized by the U.S. Constitution or
by lawful court orders, nor are we attempting to access or monitor the digital
communications of all citizens. Rather, we are simply seeking the ability to lawfully
access information that has been duly authorized by a court in the limited
circumstances prescribed in specific court orders - infonnation of potentially
significant consequence for investigations of serious crimes and terrorism[.] [CALEA]
needs to be changed to incorporate new communications technologies."
"Critical investigations increasingly rely on digital evidence lawfully captured from
smart phones, tablets and other communications devices. [Law enforcement's)
inability to access this data, either because we cannot break the encryption algorithm
resident in the device, or because the device does not fall under CALEA or the
developer has not built the access route, means that lives may well be at risk or lost,
and the guilty parties remain free."

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Peter T. King, "Remembering the Lessons of 9/11: Preserving Tools and Authorities in the Fight
Against Terrorism," 41 J. Legis. 173, 178-80 (2014-2015) (emphasis added; citations omitted).
In addition to the history recounted above, I note two further types of legislative
developments this year. First, Senator Ron Wyden, Representative Ted Poe, and a bipartisan group of
legislators in the House of Representatives have each introduced bills in 2015 that would preclude the
government from forcing a private entity such as Apple to compromise the kind of data security at
issue here. See Secure Data Act of 2015, S. 135, 114th Cong. (2015); Secure Data Act of 2015, H.R. 726,
114th Cong. (2015); End Warrantless Surveillance of Americans Act, H.R. 2233, 114th Cong. (2015).
Second, on July 8, 2015, the United States Senate Committee on the Judiciary held a hearing
entitled "Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy."
The Deputy Attorney General and the Director of the FBI submitted testimony at that hearing noting
that while the Justice Department still has not proposed specific legislation on the instant issue, there
is a need for Congress and others to craft an approach to balancing privacy and law enforcement
interests specifically with respect to the encryption of data on smart phones, among other things. Going

Dark: E11cryption, Technology, and the Balance Between P11blic Sqfety and Priva9, before the S. Comm. on the
Judiciary, 114th Cong. Qui. 8, 2015) (statement of Sally Quillian Yates and James B. Comey). 1

1

In a similarly-titled article published shortly before his Senate testimony, Director Corney discussed
the extent to which companies like Apple should be compelled to ensure law enforcement access to
the user content stored on its devices. Pertinent to the instant analysis of the All Writs Act, he wrote:
Democracies resolve such tensions through robust debate .... It may be that, as a
people, we decide the benefits here outweigh the costs and that there is no sensible,
technically feasible way to optimize privacy and safety in this particular context, or that
public safety folks will be able to do their job well enough in a world of universal
strong encryption. Those are decisions Americans should make, but I think part of my
job is [to] make sure the debate is informed by a reasonable understanding of the costs.
James Corney, "Encryption, Public Safety, and 'Going Dark,"' Lawfare Quly 6, 2015, 10:38 AM),
https:/ /www.lawfareblog.com/ encryption-public-safety-and-going-dark. Director Corney's view
about how such policy matters should be resolved is in tension, if not entirely at odds, with the robust
application of the All Writs Act the government now advocates. Even if CALEA and the

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It thus appears that Congress enacted a statute in 1994 that understandably did not anticipate
later technological advancement and therefore omits from its extensive regulation of private actors the
authority to compel the exact kind of assistance to law enforcement the government now seeks. But it
also appears that members of the executive and legislative branches have considered updating that
statute to allow, among other things, the judicial authorization of the precise investigative technique at
issue here - and have not reached a consensus that such action is warranted. In such circumstances,
there may not be a "statute [that] specifically addresses the particular issue at hand," Pennsylvania B11rea11

ofCome/ion, 474 U.S. at 43, but it is equally true that the absence of any explicit statutory authority for
the relief the government seeks cannot be attributed to a failure of legislators to consider such an
enactment. Rather, this case falls in the murkier area in which Congress is plainly aware of the lack of
statutory authority and has thus far failed either to create or reject it. Under such circumstances, it is far
from obvious that the reasoning in Pe11n.ry/11a11ia B11rea11 of Correction supports the proposition that the
relief the government seeks is available under the All Writs Act.
The government also cites United Stales v. New York Tel. Co., 434 U.S. 159, 174 (1977). In that
case, the Supreme Court held that the All Writs Act empowered the district court to compel the New
York Telephone Company to install a pen register to effectuate a search warrant. But as the court's
opinion demonstrates, the circumstances were quite different:
[The district court] found that there was probable cause to believe that the [Telephone]
Company's facilities were being employed to facilitate a criminal enterprise on a
continuing basis. For the Company, with this knowledge, to refuse to supply the
meager assistance required by the FBI in its efforts to put an end to this venture

Congressional determination not to mandate "back door" access for law enforcement to encrypted
devices does not foreclose reliance on the All \Vrits Act to grant the instant motion, using an
aggressive interpretation of that statute's scope to short-circuit public debate on this controversy
seems fundamentally inconsistent with the proposition that such important policy issues should be
determined in the first instance by the legislative branch after public debate - as opposed to having
them decided by the judiciary in sealed, ex parte proceedings.

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threatened obstruction of an investigation which would detennine whether the
Company's facilities were being lawfully used.
Moreover, it can hardly be contended that the Company, a highly regulated public
utility with a duty to serve the public, had a substantial interest in not providing
assistance. Certainly the use of pen registers is by no means offensive to it. The
Company concedes that it regularly employs such devices without court order for the
purposes of checking billing operations, detecting fraud, and preventing violations of
law. It also agreed to supply the FBI with all the information required to install its own
pen registers. Nor was the District Court's order in any way burdensome. The order
provided that the Company be fully reimbursed at prevailing rates, and compliance
with it required minimal effort on the part of the Company and no disruption to its
operations.
Finally, we note, as the Court of Appeals recognized, that without the Company's
assistance there is no conceivable way in which the surveillance authorized by the
District Court could have been successfully accomplished. The FBI, after an
exhaustive search, was unable to find a location where it could install its own pen
registers without tipping off the targets of the investigation. The provision of a leased
line by the Company was essential to the fulfillment of the purpose - to learn the
identities of those connected with the gambling operation - for which the pen register
order had been issued.
The order compelling the Company to provide assistance was not only consistent with
the Act but also with more recent congressional actions. As established (above],
Congress clearly intended to pennit the use of pen registers by federal law
enforcement officials. Without the assistance of the Company in circumstances such
as those presented here, however, these devices simply cannot be effectively
employed. Moreover, Congress provided in a 1970 amendment to Title III that 11 (a]n
order authorizing the interception of a wire or oral communication shall, upon request
of the applicant, direct that a communication common carrier ... shall furnish the
applicant forthwith all information, facilities, and technical assistance necessary to
accomplish the interception unobtrusively ...." 18 U.S.C. § 2518(4). In light of this
direct command to federal courts to compel, upon request, any assistance necessary to
accomplish an electronic interception, it would be remarkable if Congress thought it
beyond the power of the federal courts to exercise, where required, a discretionary
authority to order telephone companies to assist in the installation and operation of
pen registers, which accomplish a far lesser invasion of privacy. We are convinced that
to prohibit the order challenged here would frustrate the clear indication by Congress
that the pen register is a permissible law enforcement tool by enabling a public utility to
thwart a judicial determination that its use is required to apprehend and prosecute
successfully those employing the utility's facilities to conduct a criminal venture.
Id. at 174-78.

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There are several ways in which the circumstances of this case differ in material respects from
those of New York Tel Co. First, in the latter case, the government needed assistance in effectuating a
court order to secure information from the Telephone Company's own facility. Here, by contrast,
Apple manufactured the device at issue, but apparently does not own it. 2
Second, unlike the Telephone Company, Apple is not "a highly regulated public utility with a
duty to serve the public[.]" It is a private-sector company that is free to choose to promote its
customers' interest in privacy over the competing interest oflaw enforcement. Indeed, whereas in Ne1v

York Tel Co. "it [could] hardly be contended that the Company ... had a substantial interest in not
providing [the requested] assistance," it is entirely possible, if not likely, that Apple has thus far made a
deliberate decision to balance those competing interests in favor of its customers' privacy preferences,
as discussed further below. Similarly, unlike the Telephone Company, which as the Supreme Court
noted, regularly used pen registers for its own business purposes, there is nothing in the record to
suggest that Apple has or wants the ability to defeat customer-installed security codes to access the
encrypted data that its customers store on Apple devices after purchasing them.
Third, the Court in New York Tel Co. explained why there was simply no practicable alternative
in that case to requiring the Telephone Company to provide a pen register- no other method was
available to secure the information that the lower court had already determined should lawfully be
made available to the government. That is not the case here: one potential alternative to forcing Apple
to try to decrypt the device at issue, and one that may well be more effective, is to compel the device's
owner or user to unlock the phone for lawful inspection, on pain of coercive contempt sanctions. 3

2

Indeed, the record is not even clear that Apple can now unlock the device at issue. See Application at
1 ("Apple ... n1ay be capable of retrieving the data") (emphasis added).

3

I need not and do not consider the slightly different alternative of an order requiring the owner to
reveal the passcode that unlocks the device. The owner may arguably have a Fifth Amendment
privilege to refuse to reveal the code, but could not have such a privilege to withhold stored data by

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Fourth, the Supreme Court explained at length in New York Tel Co. that requiring the
Telephone Company to assist in installing a pen register was manifestly consistent with then-recent
Congressional enactments to provide law enforcement with just that investigative tool and to require
telephone companies to provide assistance to law enforcement agencies in deploying the surveillance
techniques that Congress placed at their disposal. Here, by contrast, Congress has done nothing that
would remotely suggest an intent to force Apple, in the circumstances of this case, to provide the
assistance the government now requests. To the contrary, Congress has failed to act on concerns
expressed by the Justice Department and the FBI about the lack of such legislation, and several of its
members have introduced legislation to prohibit exactly what the government now asks to the court to
compel. For all these reasons, I conclude that the opinion in New York Tel Co. does not support the
government's motion.
In reaching that conclusion, I respectfully disagree with the one other court that I know to
have addressed the precise issue presented here. See 111 re XXX, l11t:, 2014 WL 5510865 (S.D.N.Y. Oct.
31, 2014)."' In granting the similar application in that case, the court relied on New York Tel Co. and

secreting it in such a way that law enforcement could not gain access. Likewise, I do not offer any view
on the extent to which, if any, the act-of-production doctrine might require a grant of immunity for
any testimonial information that the owner would convey by unlocking the device in the government's
possession. CJ. U11iled Stales v. H11bbell, 530 U.S. 27 (2000); United Stales v. Doe, 465 U.S. 605 (1984); Fisher
v. United Stales, 425 U.S. 391 (1976); United Stales v. Bondo, 2015 WL 1518987, at *6 (A.F. Ct. Crim. App.
Mar 18, 2015) ("We leave as unresolved whether a properly issued warrant may compel a suspect to
produce a password."); United Stales v. Ha!fteld, 2010 \VL 1423103 (E.D.N.Y. Apr. 7, 2010); In re Bo11cher,
2009 \VL 424718 (D. Vt. 2009); see also United States v. F111111a11, 2015 \VL 1061956, at *2 (D. :tvfinn. Mar.
11, 2015) (government obtained password for locked device by asking defendant for it}; United Stales v.
Graham, 2014 WL 2922388, at *3 (same). The Application does not reveal whether the government
knows the identity of the device's owner or user; if it does not, the availability of such compulsion
would plainly not be a viable alternative in this case, even if it would be in others.
4

The government represents, without providing citations, "that in other cases, courts have ordered
Apple to assist in effectuating search warrants under the authority of the All Writs Act [and that] Apple
has complied with such orders." Application at 2. I have no doubt that the representation is correct,
but In re XXX is the sole such published decision I have been able to find (although that decision does
not reveal whether the private company involved was Apple).

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compared the assistance sought there (and here) to the kind of technical assistance deemed to be not
unreasonably burdensome in other cases:
Case law reflects that orders providing technical assistance of the kind sought here arc
often not deemed to be burdensome. See, e.g., Applicatio11 of U.S. far a11 Order A11thori!efng
a11 In-Progress Trace oflY/ire Commc'ns over Tel Facilities, 616 F.2d 1122, 1132 (9th Cir.
1980) (tracing of a telephone call conducted through an "electronic or mechanical
device" rather than manually); United States v. Hall, 583 F. Supp. 717, 721 (E.D. Va.
1984) (records that could be generated by "punching a few buttons"); see al.so New York
Telepho11e Co., 434 U.S. at 177 (assistance "in the installation and operation of' a pen
register). Case law also reflects that in some instances parties subject to the writ should
be compensated for their expenses. See, e.g., Application ofU.S. far an OrderAnthori:rj11g an
I11-Progress Trace of IY/ire Commc'ns over Tel Facilities, 616 F.2d at 1133 (court should
consider whether third party will be "fully compensated for the services provided");
Applicatio11 of U.S. far Order A11thori:rj11g Installation of Pen Register or To11d>-Tone Decoder &
Tewinati11g Trap, 610 F.2d 1148, 1156 (3d Cir. 1979) (third party would "be
compensated 'at the prevailing rates' for its services").

In re XXX, Inc., 2014 WL 5510865, at *2. Based on that analysis, the court granted the government's
application, with the proviso that the manufacturer could seek relief from the order within five days if
it deemed compliance to be unreasonably burdensome. Id. at 3.
The court in It1 rr XXX, Inc. implicitly concluded that the burden of compliance for the private
actor at issue was limited to the physical demands and immediate monetary costs of compliance.
Likewise, in this matter, the government opines that the order it requests "is not likely to place any
unreasonable burden on Apple." Application at 3. I am less certain. The decision to allow consumers
to encrypt their devices in such a way that would be resistant to ready law enforcement access was
likely one that Apple did not make in haste, or without significant consideration of the competing
interests of public safety and the personal privacy and data security of its customers. See, e.&, Ellen
Nakashima, Tech Gia11ts Don't l'f/a11/ Obama To Give Police Access To Encrypted Phone Data, Washington Post,
May 19, 2015. It may reflect an analysis of Apple's business prospects that persuaded the company that
failing to provide its customers with the kind of privacy protection the government now seeks to
overcome would have long-term costs that outweighed the benefits of a technological approach more
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to the government's liking. Thus, without hearing from Apple, I cannot assume that forcing it to
modify that decision would not impose an unreasonable burden. CJ In re U.S. far an Order A111horizjng

Roving Interception of Oral Commc'11s, 349 F.3d 1132, 1145 (9th Cir. 2003) ("The obligation of private
citizens to assist law enforcement, even if they are compensated for the immediate costs of doing so,
has not extended to circumstances in which there is a complete disruption of a service they offer to a
customer as part of their business .... ") (interpreting CALEA and the All Writs Act in light of the
opinion in New York Tel Co.).
In short, I conclude that the authorities on which the government relies do not support the

conclusion that the All Writs Act permits the relief that the government seeks. That does not
necessarily mean, however, that such relief is unavailable under the statute. \Vhile the preceding
analysis strongly suggests that granting the instant motion would be inconsistent with the purpose of
the All Writs Act as interpreted in the cases discussed above, one important missing piece of the
analysis is the extent to which Apple would find the requested order burdensome. Indeed, regardless
of whether I were inclined to grant or deny the motion at this point, I would need such information, as
"(C)ourts have held that due process requires that a third party subject to an order under the All Writs
Act be afforded a hearing on the issue of burdensomeness prior to compelling it to provide assistance
to the Government." !tr re XXX, I11c., 2014 WL 5510865, at *2 (citing I11 re I11slallalio11 ofa Pen fugjster or

To11ch-To11e Decoder & a Tenni11ali11g Trap, 610 F.2d 1148, 1157 (3d Cir. 1979); United Stales v. Mo1111lai11
Stales Tel & Tel Co., 616 F.2d 1122, 1132-33 (9th Cir. 1980)).
Accordingly, for the reasons set forth above, I temporarily defer ruling on the instant
application and instead respectfully direct the government to serve its application and this
Memorandum and Order on Apple forthwith. Apple shall provide a written response no later than
October 15, 2015. The government may submit a written reply. If either the government or Apple

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wishes to present oral argument on the matter, I will hear such argument on October 22, 2015, at 12:00
noon.
SO ORDERED.
Dated: Brooklyn, New York
October 9, 2015

/s/
JAMES ORENSTEIN
U.S. Magistrate Judge

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