Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 1 of 87 PageID #: 460 1 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 2 3 - - - - - - - - - - - - 4 ORDER REQUIRING APPLE INC 5 TO ASSIST IN THE EXECUTION 6 OF A SEARCH WARRANT 7 ISSUED BY THE COURT, ET AL X 8 9 15 MC 1902 - - - - - - - - - - - - - - X 10 United States Courthouse 11 Brooklyn, New York 12 October 26, 2015 11:30 o'clock a.m. 13 14 TRANSCRIPT OF ARGUMENT BEFORE THE HONORABLE JAMES ORENSTEIN UNITED STATES MAGISTRATE JUDGE 15 16 APPEARANCES: 17 For the Government: ROBERT L. CAPERS United States Attorney 271 Cadman Plaza East Brooklyn, NY 11201 18 19 BY: SARITHA KOMATIREDDY LAUREN H. ELBERT AMEET KABRAWALA Assistant US Attorneys 20 21 22 23 For Apple: ZwillGen 1900 M Street NW Washington, DC 20036 24 BY: MARC J. ZWILLINGER, ESQ. JEFFREY LANDIS, ESQ. 25 GR OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 2 of 87 PageID #: 461 2 1 Court Reporter: Gene Rudolph 225 Cadman Plaza East Brooklyn, New York (718) 613-2538 2 3 4 5 Proceedings recorded by mechanical stenography, transcript produced by computer-aided transcription. 6 7 ******* 8 9 THE CLERK: Civil cause for oral argument, 10 15 Miscellaneous 1902, In Re Order Requiring Apple Inc to 11 Assist in the Execution of a Search Warrant. 12 THE COURT: 13 May we have the appearances, please? 14 Good morning. For the government? 15 MS. KOMATIREDDY: Good morning, Your Honor. 16 Saritha Komatireddy for the United States. I am 17 joined by Lauren Elbert and Ameet Kabrawala, both Assistant 18 United States Attorneys. 19 THE COURT: 20 MR. ZWILLINGER: 21 Marc Zwillinger for Apple. 22 Welcome to all of you. Good morning, Your Honor. table with my colleague Jeffrey Landis. 23 THE COURT: 24 All right, folks. 25 I am joined at counsel Good morning to both of you. First I want to thank you all for the briefing that you have provided, very informative, very GR OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 3 of 87 PageID #: 462 3 1 helpful. 2 I appreciate that. 3 of these issues and also made it clear to me how very close 4 some of them are, to my mind. 5 I know it has been on a somewhat quick schedule, so It's really helped me get a handle on some I will have some questions for both sides as we go 6 along but I do want to hear from you. As we get started 7 though I want to bring to your attention something that one of 8 my colleagues alerted me to because I do intend to ask about 9 it. I will ask my deputy to hand a copy down. 10 It is a letter from the government and some 11 testimony in a hearing before Judge Johnson in a case in this 12 district. 13 was taken on September 3rd of this year in United States 14 against Djibo. 15 The letter is dated July 9, 2015, and the testimony I bring it to your attention because the basic 16 assertion on the part of the government that brings us here is 17 the proposition that the iPhone at issue here is one that the 18 DEA and FBI have tried and failed to unlock because of the 19 pass code and the government expands from that in its brief to 20 say that the government, broadly speaking I suppose, is simply 21 unable to unlock the phone at issue here. 22 So the reason I bring the Djibo materials to your 23 attention is because on page five of the letter the government 24 writes, HSI, Homeland -- Department of Homeland Security -- I 25 always forget what the I stands for. GR OCR CM In any event, HSI is in CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 4 of 87 PageID #: 463 4 1 possession of technology that would allow its forensic 2 technicians to override the pass codes security feature on the 3 subject iPhone and obtain the data contained therein. 4 In other words, even if HSI agents did not have the 5 defendant's pass code, they would nevertheless have been able 6 to obtain the records stored in the subject iPhone using 7 specialized software. 8 bi-code entry requirement and unlock the cellular telephone 9 without having to enter the code. 10 11 The software works to bypass the Once the device is unlocked, all records in it can be accessed and copied. Then in the testimony in the Djibo case the 12 government's forensic expert expanded on that and explained 13 something about how it works, including under 14 cross-examination by the defendant's counsel in that case, and 15 made clear that the software version in that case was 16 running -- the iPhone in that case was running, the software 17 version of IOS 8.1.2, if I am not mistaken. 18 I am giving this to you now. I learned of it since 19 your briefing. 20 hear it but I don't want to put you on the spot. 21 to know that this has come to my attention and I'll, of 22 course, afford both sides here an opportunity to submit 23 something further on it if they like. 24 25 If you have some thoughts on it I am happy to That's where I am starting from. a number of questions, I'm sure. GR OCR CM I want you I am going to have But Ms. Komatireddy, or one CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 5 of 87 PageID #: 464 5 1 of your colleagues, or whoever wants to be heard, why don't 2 you start. 3 MS. KOMATIREDDY: Thank you, Your Honor. 4 We would like to make some introductory remarks and 5 of course we are happy to answer any questions the Court may 6 have. 7 THE COURT: 8 MS. KOMATIREDDY: 9 Yes. In this case, the most important thing to remember is that a federal court issued a federal 10 search warrant commanding agents to search a phone for 11 evidence of crime, a crystal meth conspiracy. 12 13 THE COURT: year ago, correct? 14 15 16 17 18 19 20 21 The search warrant has expired over a MS. KOMATIREDDY: issued. There were two search warrants There was one search warrant issued in 2014. THE COURT: That is the one attached to the application. MS. KOMATIREDDY: No, sir. The first search warrant was for the home and the devices. THE COURT: No. I am talking about the one attached to the application now before me. 22 MS. KOMATIREDDY: 23 THE COURT: Yes. I should note, by the way, the 24 application said it is attached as Exhibit A. 25 the docket. It should be. GR OCR It is not on I will ask you to correct that. CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 6 of 87 PageID #: 465 6 1 But it was attached to the email by which I initially got the 2 application. 3 4 Anyway, that warrant has expired over a year ago, hasn't it? 5 MS. KOMATIREDDY: The warrant was issued July 6th. 6 It has to be executed within two weeks of the issuance date. 7 With electronic evidence you can initiate the execution of the 8 search warrant by attempting to search the device, turning it 9 on and placing it in airplane mode. The agents here began 10 that search but were unable to complete that search because of 11 the password bypass. 12 THE COURT: 13 So you are saying it's already started and you can finish it at any time? 14 MS. KOMATIREDDY: 15 THE COURT: Yes, sir. I am not sure I agree with that. I 16 don't think it matters a bit. 17 assume that you are making a request for a renewed warrant. 18 Even if it expired, I would But it does raise the question, why is it the 19 government waited from July of 2014 until October of 2015 to 20 ask Apple for this assistance as recounted in your brief only 21 then to tell me that you need me to issue an expedited 22 decision. 23 MS. KOMATIREDDY: 24 The government, as noted in the brief, there are two 25 Fair enough, Your Honor. agencies involved in this case, the DEA and the FBI. GR OCR CM CRR CSR The DEA Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 7 of 87 PageID #: 466 7 1 first primarily attempted to enter into the phone using its 2 own technology. 3 with the FBI. 4 After being unable to do so, it consulted I want to note that there were ten cellphones seized 5 from the defendant's home. That search warrant at issue on 6 July 6th was for all ten cellphones. 7 of executing a search warrant on the other phones. 8 some time. 9 explore the reasonable alternatives available to it in order They were in the process That took It also took some time for the government to 10 to execute the search warrant without having asking for 11 third-party assistance. 12 Once it determined, both agencies determined that 13 they could not get into the phone without Apple's assistance, 14 the government reached out to Apple. 15 important to note the government reached out to Apple first 16 before ever applying for any relief in this Court and asked if 17 it could bypass the pass code and do so within time for trial. 18 Apple stated that it could and would with a Court order and 19 stated that it would do within one to two weeks. 20 accommodate the revised schedule here in the briefing, Apple 21 now stated it can actually do it in one day. 22 turnaround time we now expect. 23 I do think it's To That's the In that process of those conversations, Apple 24 provided the government with specific language from its legal 25 process guidelines that it required, that it insisted on, GR OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 8 of 87 PageID #: 467 8 1 requested for what it would consider an order that it could 2 follow in executing the government's request for assistance. 3 When the government applied to this Court for and order, it 4 used that language. 5 Now, this was a textbook example of Apple's 6 long-standing and responsible corporate practice of bypassing 7 locked cellphones when it has a Court order requiring it to do 8 so. 9 Since 2008, our initial estimates are that Apple has 10 received at least 70 court orders requiring it to assist in 11 this manner, has never objected to them and has complied. 12 sure counsel for Apple has the exact number available for you. 13 That number is based on an initial survey, an ongoing query of 14 government prosecutors around the country. 15 THE COURT: I'm I take it, that fact, you are not 16 saying, I don't think you are saying, that it constitutes any 17 sort of waiver. 18 19 20 It's really just a question of burden. MS. KOMATIREDDY: That is correct. It's not a waiver per se. It's worth noting that Apple in that process since 21 2008, and we quoted the very first email we have on record, 22 where Apple provided this guidance, throughout that time 23 period it had an established procedure for routinely taking in 24 these requests, complying with them, processing them and 25 informing the public about this practice by continually GR OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 9 of 87 PageID #: 468 9 1 publishing and updating its legal process guidelines. 2 During that same timeframe that it has been 3 processing these requests Apple has grown to become the 4 biggest company in the world. 5 of employee resources or time or reputation was minimal. 6 So plainly any burden in terms The government's application in this case followed 7 that same template, that same routine procedure. 8 secret. 9 authority. It did not seek any new broad surveillance 10 authority. It did not ask Apple to create any capability that 11 it did not already have. 12 for assistance in carrying out a valid search warrant issued 13 by a federal court, as Apple has done so many times before. 14 It was not new. It was not It did not invoke any new legal It was just a simple routine request For years Apple has provided this assistance and 15 until two weeks ago Apple indicated to the government that it 16 would provide that assistance again in this case. 17 position in Court today represents what we consider to be a 18 stunning reversal of that position, and Apple's stated reason 19 for this reversal is a concern for its brand. 20 unfortunate. 21 companies protect their privacy and their safety. 22 Apple's This is American consumers should expect that American THE COURT: Your brief goes to a surprising length 23 to questioning the patriotism of a company that stands on its 24 rights in this way. 25 really doesn't help me resolve the legal issue. GR Whether I agree or disagree with it OCR CM CRR CSR But it does Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 10 of 87 PageID #: 469 10 1 create an atmosphere I think that, it isn't helpful. 2 don't think they are patriotic to question. 3 that clear in your brief. 4 the legal question. 5 You You have made I'd really just as soon focus on MS. KOMATIREDDY: It's not a question of patriotism, 6 Your Honor. It's a suggestion, Apple states in its brief that 7 it is happy to -- it takes seriously its responsibility of 8 assisting where there is legal access, there is a legal form 9 of access to data, and it takes a stand against improper 10 access. 11 federal search warrant. 12 There is no improper access here. There is a valid Of course, we welcome this debate and we welcome the 13 opportunity to explore these issues but we are a little bit 14 surprised only because in this case -- Apple has for a long 15 time complied with lawful Court orders requiring and 16 requesting exactly what we are requesting in this case. 17 THE COURT: I take it -- forgive me for 18 interrupting. 19 aside any possibility of an appeal to the higher court, if the 20 end result of this case is a court order that Apple must do 21 what the government seeks, Apple is going to comply here, 22 right? 23 24 25 I take it, there is no question that, leaving MR. ZWILLINGER: That is correct, Your Honor. would comply with an order of this court. THE COURT: GR Okay. OCR That's why I am not sure I CM CRR CSR Apple Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 11 of 87 PageID #: 470 11 1 understand. You are not saying that there is some sort of 2 waiver or estoppel based on past practice. 3 what Apple has done before goes to anything other than giving 4 some insight into the burden. 5 MS. KOMATIREDDY: 6 THE COURT: 7 MS. KOMATIREDDY: I am not sure that That's exactly right, Your Honor. I get that. I want to add one more point, Your 8 Honor, which is the comment on what American consumers expect 9 for the company. It's not a comment about patriotism. It's a 10 comment on what Apple has perceived as damage to their brand. 11 This Court shouldn't condone the notion that a company has a 12 negative impact on its brand when it follows US law or that -- 13 14 15 THE COURT: things. It is such a tendentious way of putting It's just not going to help me. Look, there is a wonderful argument to be made, as 16 you make it, that Americans expect that corporate citizens 17 will comply with law. 18 question about it. 19 Apple will do so here. There is no But there is a competing interest that they have 20 identified and, I take it, you would acknowledge that any 21 private entity called on to be pressed into service by the 22 government is in the best position to identify what its 23 interests are, whether or not they should give way to them. 24 They are in the best position to tell us, here is what we 25 value, here is what is important to us. GR OCR CM CRR You may say well, CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 12 of 87 PageID #: 471 12 1 that's not a good value. We don't think Americans share that 2 value, all right thinking Americans at least. 3 How does it help me understand the legal issue here? 4 MS. KOMATIREDDY: 5 Your Honor. 6 brand. 7 reputational burden. 8 THE COURT: 9 It is a comment on the burden, Our position is, it doesn't actually damage the There is not actually a burden in terms of Is that based on any kind of data, any evidence or is it just -- it can't be that people won't 10 appreciate it if Apple complies with the law and helps you 11 promote an investigation. 12 MS. KOMATIREDDY: It's based on a couple of things. 13 First, in the last seven years Apple has published its 14 practice of complying with these sorts of orders, providing 15 assistance to law enforcement to get into locked phones when 16 there are valid search orders. 17 It's reasonable to assume that customers have been aware of 18 that. 19 discussion forums -- 20 THE COURT: 21 22 23 24 25 That practice has been public. Even a cursory search of Apple support blogs or So why did the government announce that it's not seeking to seek backdoor legislation? MS. KOMATIREDDY: That is a separate issue. Here, this is not a backdoor. THE COURT: It's not a backdoor. It's the same basic idea, which is the government for reasons sufficient to GR OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 13 of 87 PageID #: 472 13 1 itself -- this is another reason why I don't think it is 2 useful to have the conversation about whose values are better. 3 But the government announced a decision, surprisingly unknown 4 to me, on the same day that this application was made that 5 they are not going to seek authority from Congress to require 6 a company like Apple to provide access that gets past password 7 or encryption. 8 9 If you are saying that look, all right thinking Americans are going to want a company like Apple to do just 10 that, I don't understand why the government would balk at 11 asking Congress to require it. 12 But it doesn't matter. The question is, Apple says 13 it is a burden. 14 that shows it really doesn't hurt them, we have done some 15 market research or they have and they are not telling you 16 about it, I get it. 17 Americans would like this, I understand the argument. 18 have made it well. 19 If you can say look, here is some evidence But if it is just look, we don't think You But what more does it get me? MS. KOMATIREDDY: I think the basic point, you are 20 right, Your Honor, that the -- whether or how the government 21 sought backdoor legislation is irrelevant. 22 THE COURT: That's what I said? 23 MS. KOMATIREDDY: The basic point -Okay. Here -- the basic point here is, 24 Apple has been doing this for a long time and it has been 25 public for a long time. GR OCR The brand hasn't hurt. CM CRR CSR That is Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 14 of 87 PageID #: 473 14 1 evidence in itself there is no reputational burden. 2 3 THE COURT: Okay. You are saying the brand hasn't been hurt because it's grown, the company? 4 MS. KOMATIREDDY: 5 THE COURT: The company has grown. You have done some regression analysis 6 that factors out other things that may affect the value of the 7 brand? 8 MS. KOMATIREDDY: 9 THE COURT: 10 11 point then. Okay. I have not, Your Honor. Why don't you move on to another I think I understand this one. MS. KOMATIREDDY: Okay. The Court has made 12 several -- made observation that Congress although it didn't 13 expressly ban what -- the assistance that the government is 14 requesting here, that there is not a gap in the law because 15 recent debate has shown that Congress has refused to authorize 16 what the government is requesting here. 17 Congressional statements that have been made so far are just 18 that, a few Congressional statements, a few proposed bills, 19 but no actual legally cognizable action. 20 THE COURT: We believe that the I had a question about that. This I 21 think gets to the heart of one of the most important issues, 22 which is the applicability of the act. 23 24 25 You are saying, that what we have here is Congressional silence and silence is meaningless. MS. KOMATIREDDY: GR OCR Yes, Your Honor. CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 15 of 87 PageID #: 474 15 1 2 THE COURT: If I mischaracterizing, please do correct me. 3 What level of Congressional action or inaction 4 speaks loudly enough for the Court to take into account in 5 deciding whether there is some gap that the All Writs Act 6 fills? 7 MS. KOMATIREDDY: 8 THE COURT: 9 Actual law. So short of Congress passing a law prohibiting what you want here, it's fair game? Anything else 10 that Congress may have done in terms of considering 11 legislation one way or the other, because it doesn't result in 12 a statutory prohibition, wouldn't be enough to say, it's off 13 limits for the All Writs Act? 14 MS. KOMATIREDDY: Yes. Short -- essentially yes. 15 Because all that Congress has done so far here is 16 start a debate. There are 535 members of Congress. 17 have commented. A few have heard testimony, and there are 18 four proposed bills. 19 cites in its opinion never even were voted on. 20 referred to committee and died there. 21 THE COURT: A few The four proposed bills that the Court How far does this go? They were This won't be the 22 last time the government seeks to use the All Writs Act, and 23 as we all know by now, pretty thin list of cases that provide 24 guidance. 25 So how far does this go? If, for example, Congress voted decisively to reject GR OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 16 of 87 PageID #: 475 16 1 a bill that would explicitly confer the authority that you 2 want the Court to allow here, took a vote on a bill and 3 rejected it, 434-to-1, is that still Congressional silence 4 because you can't parse why people voted against it? 5 MS. KOMATIREDDY: I think so, Your Honor. The 6 reason is this. Because if there is a Congressional will to 7 actually prohibit this practice, those 435 people could simply 8 pass a law prohibiting it. 9 cited three bills that have been proposed in the current 10 Congress to ban the exact access we are requesting here. 11 Those bills were not passed. 12 committee. 13 got no traction. 14 saying for now, for whatever reasons, all 435 people have, for 15 now the status quo should remain. In fact, Your Honor has actually They did not get out of They were not the subject of floor debates. They That can reasonably be read as Congress 16 It's also reasonable to assume Congress is aware of 17 the government practice of government obtaining All Writs Act 18 orders and aware of that background when it makes the decision 19 to act or not act. 20 that Your Honor cited, part of the testimony at one of those 21 hearings actually made clear that testimony by the FBI 22 executive assistant director made clear that in the past 23 companies had the ability to decrypt devices when the 24 government obtained a search warrant and a court order. 25 Congress is aware of that practice. GR In fact, when you look at the hearings OCR CM The debate that was going CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 17 of 87 PageID #: 476 17 1 on about the so-called going dark issue was about when you get 2 a Court order, the company not being able to get into a device 3 and whether there should be legislation to address that. 4 So I think with all of that in mind, given that 5 Congress doesn't have a developed debate on this, in fact a 6 debate I would say is preliminary, there are no bills that 7 went past committee and in fact bills that were proposed to 8 prohibit this practice were not passed, were not debated, were 9 not voted on. 10 11 12 All that's left is the status quo. THE COURT: Last -- not last probably, but one more question on how far does this go. Another variation on the scenario I posed before. 13 If you have -- a bill goes through Congress that started out 14 with language conferring the authority you seek here, and 15 unanimous agreement to strip it out of the bill before it is 16 passed, so we still don't have legislation one way or the 17 other on it. 18 a bill that otherwise would have it. 19 silence that makes it fair game for a Court to grant the 20 authority under the All Writs Act? 21 22 23 We have a very clear record to take it away from MS. KOMATIREDDY: Still Congressional The hypothetical is, that there is language to prohibit what we are requesting? THE COURT: No. Say the government can force a 24 company like Apple to break into one of its phones, where the 25 user won't and has forgotten the password. GR OCR CM CRR So basically, this CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 18 of 87 PageID #: 477 18 1 case codified as part of a larger bill and that provision is 2 unanimously stripped out before it passes. 3 the same statutory regime that we have now but we have 4 everyone in Congress voting to take away something that would 5 give you this authority. 6 Still Congressional silence? 7 MS. KOMATIREDDY: So we still have It is, Your Honor, because 8 everyone in Congress could easily vote the other way. 9 Everyone in Congress could easily make an affirmative law that 10 states that it grants this authority. 11 THE COURT: Okay. If in doing that they say you 12 know what this is a separate bill. 13 week. 14 intervening week; still can do this under the All Writs Act? It's on the agenda. 15 MS. KOMATIREDDY: 16 THE COURT: 17 MS. KOMATIREDDY: We are going to do it next We are going to vote on it in the Yes, sir. Okay. Because Congressional silence is 18 Congressional silence. 19 Congress considering bills and doing nothing about them. 20 that doesn't undermine the current legal authority. 21 example is the House has passed at least 30 times a bill 22 seeking the repeal of the Affordable Care Act. 23 undermine the Affordable Care Act's reasonable effect. 24 25 THE COURT: There are a number of examples of But A simple That doesn't Obviously the concern is as Congress goes longer and longer due to influences we are all familiar GR OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 19 of 87 PageID #: 478 19 1 with that we needn't rehearse here, it goes longer and longer 2 without revisiting statutes that are daily getting more and 3 more outstripped by the technology. 4 this proposed use of the All Writs Act takes away the 5 legislative authority from Congress and puts it squarely in 6 the courts. 7 separation of powers that we have that it's hard to believe 8 that it squares with the intent of the All Writs Act. 9 It just seems to be so at odds with the MS. KOMATIREDDY: The All Writs Act was passed as 10 parts of the Judiciary Act of 1789. 11 It's actually foundational. 12 of powers. 13 It's taking -- this use, THE COURT: Some call it antiquated. It comports with the separation It initially passed in 1789. It has 14 been updated as recently -- Congress passed this version in 15 1949. 16 MS. KOMATIREDDY: Right. 17 My point is, when Congress created the federal 18 courts it also ensured that whatever orders the federal courts 19 issued it could make those orders effective. 20 issues a search warrant, it could to do what it needed to make 21 that search warrant effective if doing so was reasonable, 22 didn't cause unnecessary burden, there were no alternatives to 23 the government, et cetera. 24 25 If federal court So with that in mind it's not unreasonable for a Court to do what is necessary to effectuate its orders. GR OCR CM CRR CSR I Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 20 of 87 PageID #: 479 20 1 2 don't think that affects separation of powers. As to Congress moving too slowly and therefore 3 delegating what the Court may consider undue authority to the 4 judiciary on this matter, Congress also has to engage in its 5 own agenda setting and prioritization. 6 issues that they have to take up, if they feel -- assuming 7 background knowledge that Congress legislates against the 8 background of current law, if they realize and know how 9 current law operates, which is reasonable to assume they do in Given the number of 10 this case, and they are fine with it operating the way that 11 they are, there is no reason for them to prioritize this 12 particular issue at the top. 13 In fact, that's what you are seeing here. Because 14 this application is about IOS 7 and before, which in a few 15 years will probably be an obsolete issue. 16 Apple devices aren't even going to carry IOS 7. 17 THE COURT: I hope so. In a few years I hope they won't. 18 the Court here won't let me update to eight. 19 let me get nine. 20 But go ahead. 21 MS. KOMATIREDDY: So the -Because Definitely won't You see my point, Your Honor. 22 Because this particular issue is actually probably dwindling 23 in importance. 24 Writs Act continue to apply and debate what it has been 25 debating, the more salient issue of the future of IOS 8 and GR It's reasonable for Congress to let the All OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 21 of 87 PageID #: 480 21 1 beyond and devices where even when you have a court order you 2 cannot get access. 3 THE COURT: One other slightly different question 4 about the Congressional silence here. 5 Congressional silence? 6 use your help. 7 wrong. 8 9 Do we actually have This is something where I can really I acknowledge, I could so easily be getting it Under CALEA, two related questions. First, Verizon is a, or AT&T, they are clearly covered by CALEA. 10 MS. KOMATIREDDY: 11 THE COURT: Yes, Your Honor. If they were to manufacture the same 12 kind of device with the same sort of software carrying 13 password encryption, would Calea's provision against forcing a 14 provider, telecom carrier to engage in this decryption, 15 prevent the Court from ordering Verizon to do what you want 16 Apple to do? 17 MS. KOMATIREDDY: CALEA wouldn't address that 18 situation because CALEA only requires the telecommunications 19 carriers retain the capability to intercept realtime 20 communications, data and motion. 21 THE COURT: No. Think Title III wiretap. I know what it requires them to do. 22 But I thought -- this is where my own note-taking has failed 23 me. 24 specifically addressed decryption and it exempted from other 25 obligations of a telecom provider any obligation to provide I thought there was a provision in CALEA that GR OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 22 of 87 PageID #: 481 22 1 such encryption services. 2 MS. KOMATIREDDY: There is a provision in the House 3 and Senate reports that accompanied CALEA where it 4 states -- Congress states that telecommunications carriers 5 have no responsibility to decrypt encrypted communications 6 that are the subject of court ordered wiretaps unless the 7 carrier provided the encryption and can decrypt it. 8 9 In essence, when considering those realtime communications that are being intercepted on a prospective 10 Title III wiretap, the provider has the obligation to decrypt 11 communications that it is capable of decrypting but not 12 otherwise. 13 (Continued on next page.) 14 15 16 17 18 19 20 21 22 23 24 25 GR OCR CM CRR CSR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 23 of 87 PageID #: 482 - Proceedings 1 THE COURT: Okay. 23 And that may moot the second 2 question. 3 this, both sides, if there is something that you think that 4 needs a supplemental submission, you know, I welcome it. 5 can talk about scheduling for that later. 6 the need to expedite. 7 I will tell you what I have in mind. On any of We I'm sensitive to Is Apple an information service within the meaning 8 of CALEA? 9 understanding, maybe mistaken, that I asked just a moment ago, 10 whether decryption, there is an exception for decryption. 11 12 The reason I ask, because I have that sort of-- the But, so, does Apple qualify as information service, within the statute? 13 MS. KOMATIREDDY: Your Honor, I don't believe it 14 does. I am just looking for the specific statutory 15 definition. 16 restricts it to telecommunications carrier, classic public 17 utilities, not device manufacturers. CALEA's definition of information service 18 THE COURT: Okay. 19 That was a very long diversion from what I-- an 20 argument you were making, if you can find your place, I 21 welcome you going back to it. 22 MS. KOMATIREDDY: 23 THE COURT: 24 25 ask. Fair enough. If not, I have other questions I could I wanted you to get to your points. MS. KOMATIREDDY: RB I'm a happy to answer any OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 24 of 87 PageID #: 483 - Proceedings 1 questions from the Court. 2 legal basis. 3 4 THE COURT: 24 We will rely on our briefs for our Okay. Then I will -- I have to go through my notes. 5 One of the things, just about the burden, I 6 apologize, I will skip around. 7 of cases, where you have gotten assistance from Apple and have 8 been resolved without Apple having to testify. 9 intuitive sense. 10 You stated the vast majority That makes Where they have been required to testify, what kind 11 of level of detail is required to authenticate what you get 12 from their services. 13 having to reveal something that is a trade secret or something 14 like that? Does it ever put them in the position of 15 MS. KOMATIREDDY: Interesting question, Your Honor. 16 In our survey so far of Government prosecutors, we 17 have not actually identified a specific instance where they 18 have been required to testify. 19 those 70-cases say, they were not. 20 determined because the cases are not yet resolved. 21 Apple's counsel has an example. 22 THE COURT: 23 MR. ZWILLINGER: I have had many prosecutors in A few say, yet to be Perhaps If you don't mind, do you have a number? We believe that Apple has been 24 required to testify about twenty times, in cases where they 25 have done these device extractions in the past. RB OCR It is not a Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 25 of 87 PageID #: 484 - Proceedings - 25 1 comprehensive count either, that is asking the people who have 2 gone to testify. 3 THE COURT: Do you know if there has ever been an 4 issue in any of those cases, where the nature of the testimony 5 has itself implicated Apple's interests? 6 MR. ZWILLINGER: From Apple's perspective there is 7 an issue in all cases, to the extent, to prepare people to 8 testify to not go into information that would implicate 9 Apple's proprietary interests. 10 But, they have managed to find a way to introduce some testimony. 11 THE COURT: In terms of the burden, it is not a 12 realistic prospect that if you're ordered to do what the 13 Government wants here, at the trial in the case, you are going 14 to have to reveal, how to break a pass code for example. 15 MR. ZWILLINGER: The burden would not be that that 16 would impose, you know, it would infringe Apple's proprietary 17 interests. 18 On the other hand, in the cases where Apple doesn't 19 have to testify, there is still significant back and forth, 20 signing of declarations, negotiating stipulations. 21 that every case, where they do a bypass involve the several 22 hours process of a bypass, there is usually extensive work 23 after that, even in cases where they don't have to testify. 24 25 THE COURT: It is not Ms. Komatireddy, a separate issue that I'm struggling with here. RB Just in terms of how the analysis OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 26 of 87 PageID #: 485 - Proceedings 1 2 26 goes. There seems to be sort of two halves to the 3 analysis, one is, does the act apply at all. And the second 4 is, if it applies, then we are under New York Tel and the 5 three prong test. 6 There is a part of the burden analysis that keeps -- 7 I keep losing my place, trying to figure out if-- is burden or 8 applicability. 9 give over information or do something that they do anyway for It is this. What you want them to do is not 10 their own business purposes or make available to you, 11 facilities that are their's, right? 12 13 14 Those three characteristics, capture all of the cases you have cited under the All Writs Act. What you are asking them to do is do work for you. 15 I am-- so there are two questions. 16 does that fall? 17 that the All Writs Act either does or doesn't allow that? 18 does it fall into category of, is it an unreasonable burden 19 for purposes of New York Tel. 20 trying to get at? 21 One is, analytically where Does it fall into the category, applicability MS. KOMATIREDDY: Or Do you see the difference I'm I do see the difference. I think 22 analytically it falls under the burden. 23 does not specify the nature of the assistance. 24 simply says from New York Telephone and onwards, a third party 25 can be required to assist. RB The All Writs Act The case law There is all sorts of situations, OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 27 of 87 PageID #: 486 - Proceedings - 27 1 even the cases that New York Telephone cites of third parties, 2 really run the gambit of various cases we have cited about 3 corporations giving corporate records, credit cards, video 4 tapes. 5 questions, New York-- But also cases of individuals being asked to answer 6 THE COURT: Give over information. 7 MS. KOMATIREDDY: Give over information, there is 8 actually one of the cases that New York Telephone cites, 9 involves an order requiring parents, this is Board of 10 Education versus York, 429 F2D 66 in the 10th Circuit, 1970. 11 Order requiring parents to send their son to a particular 12 school, to further a desegregation. 13 information that is not use of a facility. 14 That is not necessarily But, so I do think that the All Writs Act doesn't 15 specify or limit the nature of the assistance, it simply 16 provides for assistance. 17 appropriate consideration under the burden analysis. 18 19 20 THE COURT: The nature of assistance is Look, clearly if it is not part of applicability, it is part of burden. New York Tel also, somewhat confusingly, cites the 21 Battington case, which to me is the clearest example, you know 22 conscripting work. 23 cab, says follow that car. 24 25 The cop gets on the running board of the And that is to me is the clearest example in New York Tel of the Court saying, you know, here is a way you can RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 28 of 87 PageID #: 487 - Proceedings - 28 1 use the All Writs Act. 2 surprising to me is Battington, there was actually a statute 3 that said it is unlawful for a private citizen to disobey that 4 kind of command. 5 application of the All Writs Act which is saying as long as it 6 is consistent with use-- so, that is what got me wondering 7 frankly if the idea of conscripted service, as opposed to the 8 other kinds of assistance that have been afforded under the 9 All Writs Act is sort of a categorical limit on the 10 Exactly sort of the opposite of the applicability. 11 12 What they don't talk about there, So you are saying-- anything-- I'm sorry, anything-10th Circuit. 13 MS. KOMATIREDDY: 14 THE COURT: 15 Board of Education versus York. Anything besides York that I should look at? 16 MS. KOMATIREDDY: 17 further briefing, we will. 18 THE COURT: 19 MS. KOMATIREDDY: 20 THE COURT: 21 MS. KOMATIREDDY: I will go back and we can provide Okay. May I also supplement my answer? Please. Which is, the Court characterized, 22 this as not a situation where Apple is giving over 23 information. 24 just that, extracting data. 25 The actual process of extracting this data is THE COURT: Apple doesn't-- Talking about information that they RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 29 of 87 PageID #: 488 - Proceedings - 29 1 currently have. 2 party, give me information that you have, or let me use your 3 facilities, right? 4 In any event, you do this anyway. 5 6 All of these cases are, you know, third Or usually combined with one of the other. MS. KOMATIREDDY: So this is a combination of giving over information and letting the user facilities -- 7 THE COURT: 8 You want them to go into this phone that you have, 9 10 Not information they have. and do something that you can't do. You said you can't do. Or here his can't do it. 11 But, this is not information they have. 12 not execute any search warrant in Apple's servers right now 13 and get the information you wanted, right? 14 MS. KOMATIREDDY: 15 THE COURT: You could That's correct, Your Honor. Let me ask you this related question, 16 could you subpoena or use some other form of court process, a 17 warrant, perhaps an All Writs Act order, to have Apple 18 disclose to you, how to get the information from the phone? 19 MS. KOMATIREDDY: I think the federal Government has 20 authority to issue a Grand Jury subpoena, if not a trial 21 subpoena to call a Apple witness and walk us through exactly 22 how they bypass the software. 23 24 25 THE COURT: There is existing procedure that allows you to do what you want to do here. MS. KOMATIREDDY: RB But I think that would be more OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 30 of 87 PageID #: 489 - Proceedings 1 30 burdensome to Apple, Your Honor, involving -- 2 THE COURT: Yes, but under Pennsylvania versus 3 Marshals, you can't use the All Writs Act to do something for 4 which there is a procedure available under more specific law, 5 right? 6 MS. KOMATIREDDY: Under Pennsylvania versus 7 Marshals, you can't use the All Writs Act to do something that 8 a statute curtails you from doing. 9 THE COURT: There is a statute that establishes Rule 10 41. You are saying that under Rule 41, you can call them into 11 the Grand Jury, and have them walk you through how to do this? 12 Why doesn't that end the analysis? 13 MS. KOMATIREDDY: Well, Your Honor, you can call 14 them into the Grand Jury. 15 consider. 16 into the Grand Jury, we don't believe that we have the 17 technical, actual technical capability by which I mean, the 18 device that Apple uses to bypass the pass code. 19 20 There are a couple of things to First of all, it is not clear having-- called them So, there is still a question about whether it is feasible for the Government to do so. 21 Second, calling them into the Grand Jury could cause 22 a higher burden to Apple in terms of their trade secret 23 concerns. 24 THE COURT: That is their call, right? 25 Look, this is such a complicated area, we need to RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 31 of 87 PageID #: 490 - Proceedings - 31 1 keep the analytic lines clean, right? 2 burden, there is something that could be worse for them. 3 talking about applicability. 4 Marshals, if there is another statutory path available to you, 5 you have to take it, don't you? 6 MS. KOMATIREDDY: You are wrapping into Under Pennsylvania versus If there is a statutory path that 7 doesn't permit what is being asked for. 8 happening here. 9 THE COURT: I'm That is not-- what is That is because what you are asking for 10 is being defined so specifically, right? 11 for is for Apple to do it for you. 12 MS. KOMATIREDDY: 13 THE COURT: What you are asking We are asking-- If what you are asking for is let us get 14 at the information in the phone for which we have a warrant. 15 It sounds like you are saying you do have a way to do that 16 without application of the All Writs Act. 17 MS. KOMATIREDDY: So, under that theory, Your Honor, 18 you can subpoena, you can use any prior All Writs Act 19 precedent. 20 Take for example, issuing an All Writs Act order to 21 get the credit card records from the credit card company. 22 Under that theory, you can subpoena the credit card witness to 23 testify about the credit card records as opposed to actually, 24 as opposed to actually produce the records. 25 subpoena the credit card custodian to come into the Grand Jury RB OCR Or you can Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 32 of 87 PageID #: 491 - Proceedings - 32 1 and explain how they accessed those credit card records in the 2 internal system. 3 be sufficient to then go use the system or give the federal 4 Government to use the system to get into the record. But that testimony alone we believe will not 5 THE COURT: You need the records. 6 MS. KOMATIREDDY: 7 THE COURT: Yes. You might need to authenticate those 8 records for, you know, for use in litigation. 9 about them is not going to be admissible. 10 11 The testimony But here, what you need is the know how to get to this phone. 12 MS. KOMATIREDDY: And the technology, Your Honor. 13 Apple uses this technology in its facilities. It is 14 specific, it can't do this at any Apple store. 15 to Cupertino headquarters in their facilities, which I suspect 16 can involve a Faraday room, because of remote wire requests. 17 THE COURT: 18 request. 19 that is pending. 20 You have to go Let's get rid of the remote wipe They said, that they essentially block that request Are you saying they are wrong? MR. ZWILLINGER: Your Honor, if I can clarify that 21 briefly. The brief wasn't intended to suggest that Apple did 22 anything to cause the remote wipe request to not work. 23 just a matter of fact that the remote wipe request will not 24 work given the state the device is in. 25 it will not work, but it is not because of action that Apple RB OCR It is The Court is correct Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 33 of 87 PageID #: 492 - Proceedings 1 took. 2 THE COURT: If it is not in a bag or room, and 3 connects to the internet. 4 MR. ZWILLINGER: 5 THE COURT: 6 Do you have any reason to doubt that MS. KOMATIREDDY: 8 Apple is making, no. 9 THE COURT: If that is the representation So you were saying though why it would not work because they have technology you don't. 11 12 It will not work. representation? 7 10 33 MS. KOMATIREDDY: That's right. We don't believe testimony alone allows us to get into the device. 13 THE COURT: 14 You know, this goes back to the thing I will ask you 15 to get back to me on. 16 testifies. Okay. But, Bower, the his agent who Says they have the device that will do this. 17 MS. KOMATIREDDY: Yes, I notice-- we will follow up 18 with the assistant who has that case. 19 own personal knowledge, that the particular IOS involved in 20 that case, 8.1.2, there are certain -- this is all very 21 operating system specific. 22 that there are certain technologies that allow the Government 23 independent of Apple, to get into that particular IOS. I can tell you from my There are-- I have been informed 24 But based on our investigation, and what the FBI and 25 DEA has told us about the IOS 7 system on the target phone, we RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 34 of 87 PageID #: 493 - Proceedings 1 2 34 are not able to do that. THE COURT: Is your representation about what the 3 Government can do based on what the FBI and DEA can do, or are 4 you making this representation on behalf of every, I am using 5 the broadest language deliberately. 6 representation on behalf of every deponent of the Government? You make this 7 MS. KOMATIREDDY: No, Your Honor, I would not dare. 8 THE COURT: 9 Look, I don't expect you to easily navigate, the That is an issue. 10 possibility that on the Intel side, the Government has this 11 capability. 12 court one way or the other. 13 14 I would be surprised if you would say it in open But, you have to make a representation for purposes of the All Writs Act. You have them. 15 MS. KOMATIREDDY: 16 THE COURT: 17 MS. KOMATIREDDY: 18 THE COURT: 19 20 21 That's correct. The Government cannot do this. When we-- To make that representation, you need to be right about it. MS. KOMATIREDDY: We are making that representation as the prosecution team. 22 THE COURT: You are not the prosecution team. 23 You want to conscript a third party. Before I do 24 that, don't we have to know that you don't have actually have 25 the capability, and by "you", I mean the United States RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 35 of 87 PageID #: 494 - Proceedings 1 35 Government? 2 MS. KOMATIREDDY: I think you have to know the 3 prosecutors in this case and the prosecuting agencies, the FBI 4 and DEA do not have a reasonable available tool. 5 THE COURT: If Southern District U.S. Attorneys' 6 office has the technology and know how, you can still make the 7 representation, you have just made. 8 issue an order under the All Writs Act? 9 MS. KOMATIREDDY: 10 hypothetical. 11 same. 12 13 That really allows me to That is a interesting I think it is unrealistic, the agency is the THE COURT: In terms of which office, not unrealistic. 14 But, that is a joke. 15 MS. KOMATIREDDY: 16 THE COURT: I got it. Look, we can slice it finely or not. 17 But, as opposed to your Brady obligation, Second Circuit law 18 clearly saying you are not responsible for everything in every 19 Government office. 20 affirmative relief on representation that the Government can't 21 do this. 22 23 24 25 This is different. You are seeking Why don't you have to make that representation for the entire Government? MS. KOMATIREDDY: Well, because-- at the end of the day, the question for us is, what is the burden on Apple, and RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 36 of 87 PageID #: 495 - Proceedings 1 36 is this assistance necessary to effectuate the warrant. 2 THE COURT: The necessity prong. 3 MS. KOMATIREDDY: It is the necessity prong, Your 4 Honor, but federal prosecutors don't have an obligation to 5 consult the intelligence community in order to investigate 6 crime. 7 And in fact, in doing so -THE COURT: You can ignore it. But, when you come 8 to the Court and say it is necessary, because we can't do it, 9 why does that excuse you from saying, well, wait a minute, we 10 can do it, as a Government, but we have organized ourselves 11 for reasons that may make a lot of sense in a way that we 12 choose not to. 13 MS. KOMATIREDDY: Because fundamentally the All 14 Writs Act is a practical gap filing statute. 15 academic debate about what is possible. 16 THE COURT: This is not an You are trying to have it both ways on 17 the All Writs Act. 18 you were saying, you look at it narrowly. 19 silent, even in the face of lots of evidence, that they really 20 thought about this, decided not to do what is at issue here. 21 On the one hand, you a few minutes ago, You know, it is fair game, the All Writs Act. 22 you are saying, look at it practically. 23 choose one or the other. 24 25 If Congress is Now I think you have to It gets to an interpretive question that I had which is, the reading of it that says if it is not explicitly RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 37 of 87 PageID #: 496 - Proceedings - 37 1 prohibited by Congress, it is fair game, is one that, I don't 2 have the statute in front of me. 3 achieved by saying, agreeable to the law. 4 other two words, agreeable to principles and usage of law 5 which seems to go beyond just what is in the statutory text. 6 And, you know I wonder if you have a definition of 7 those terms that your, your view of the statute doesn't read 8 out of the text. 9 MS. KOMATIREDDY: Is one that would be But we had these So in terms of whether you're 10 looking at the All Writs Act in a practical way or impractical 11 way, our approach is consistent. It is a practical approach. 12 The reason we don't accept congressional inaction as 13 having legal force, is because that is a practical approach to 14 Congress. 15 statutes including allowing the status quo to continue when 16 they can't agree on a different way. 17 18 19 Congress has all kinds of reasons it doesn't pass THE COURT: Right. But I guess my question is, this is where we get to technical issue principles and usages. We have for example in CALEA, that broadly regulates 20 an industry with respect to electronic surveillance, and then 21 carves out in some respects, the encryption and puts, you 22 know, clearly defined boundaries on when third parties can be 23 conscripted into the task. 24 25 There is a sense of what is the spirit, what is the principles and usages. RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 38 of 87 PageID #: 497 - Proceedings 1 38 And to my mind that, that is a coherent 2 understanding of the statute. 3 Congress was intending, from what they have done and what they 4 have not done, you can fill in the gaps to the extent it is 5 consistent with that overall understanding of legislation. 6 That where you can infer what I'm trying to understand how you get to, as long as 7 Congress hasn't explicitly prohibited it, a Court can do it, 8 and make that coherent under the text of the statute. 9 I phrased it badly. 10 Make that consistent with a statute that includes 11 not just agreeable to the law but agreeable to principles and 12 usages of law. 13 MS. KOMATIREDDY: I understand the Court's concern. 14 I think when looking at CALEA that way, I think there is 15 something to be said, if you have a comprehensive legislative 16 scheme. 17 passed into law like CALEA that addresses the issue. 18 is in fact comprehensive and addresses ten possible iterations 19 of a particular requested authority, and leaves one out, 20 perhaps there is reasonable inference as a matter of statutory 21 interpretation for an actual statute to say that there is an 22 implied prohibition. 23 even come close to addressing the issue we have here. 24 don't have a comprehensive statutory scheme about Federal 25 Court's requiring third parties to assist in the execution of The key there is actually a legislative scheme, one We don't have that here. RB OCR If there CALEA doesn't We Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 39 of 87 PageID #: 498 - Proceedings 1 39 a valid search warrant. 2 For as long as that has been happening it has been 3 governed by the All Writs Act. 4 with request to bypass of a pass code where a company is 5 already capable of conducting that bypass. 6 specific expressed or implied Congressional action on that 7 issue, which is why the law is left where it is. 8 9 THE COURT: In this particular context There is no I do have a couple of more questions. I don't want you to lose things that you want to say. 10 MS. KOMATIREDDY: 11 THE COURT: No, that is all right Your Honor. Your last answer reminded me of this. 12 In terms of, we have a scheme where courts effectuate warrants 13 by calling on third parties. 14 an example, if you have one, requiring a service from a third 15 party. 16 I asked you before about give me Your argument on this, this goes to the first 17 element of the New York Telephone which we have not discussed 18 yet, how closely related. 19 You have inserted into this, I don't mean that 20 pejoratively at all. 21 of something New York Tel doesn't talk about. 22 explicitly. 23 investigation. 24 25 You sort of cast the argument in terms At least not Apple is in a position to thwart your I want to make sure I understand. First of all, are they in a position to do anything going forward to thwart the RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 40 of 87 PageID #: 499 - Proceedings - 40 1 investigation or is it simply that before you got the warrant 2 they had done something, created this operating system, that 3 gave somebody else the possibility to thwart an investigation, 4 by turning on encryption. 5 6 MS. KOMATIREDDY: We are not making an allegation that Apple would affirmatively do something. 7 THE COURT: There is nothing that they can do to 8 stand in the way of your investigation other than not take 9 action. 10 MS. KOMATIREDDY: I can't represent what they are 11 capable of doing in terms of, that is not within my kin. I 12 can say-- the issue, the reason we believe there is cross 13 connection and the way New York Tel frames it, is where a 14 company's services or facilities are being used as part of an 15 ongoing criminal enterprise. 16 And, in fact, this is more fully discussed in one of 17 the other case, United States versus Hall, which is the credit 18 card records case. 19 connection because in that case, it actually says, you know, 20 the case involves federal law enforcement trying to get the 21 credit card records, not of the defendant, but another person, 22 companion. 23 It talks at length about the close THE COURT: Come on, in Hall the bank was extending 24 credit to a fugitive, while that person was a fugitive. 25 was making it possible on a go forward basis, for the fugitive RB OCR It Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 41 of 87 PageID #: 500 - Proceedings - 41 1 to escape the law. 2 comparable to that? 3 prospectively that is helping the defendant in your case. 4 What is Apple doing here that is They are taking some action going forward MS. KOMATIREDDY: So it was not actually extending 5 credit to the fugitive. 6 companion that would have location information. 7 THE COURT: It was extending credit to a While you were trying to catch this 8 person, the bank is taking actions prospectively. 9 Apple doing here that is comparable? 10 11 MS. KOMATIREDDY: The common thread is that it is the company's services that are being used by the criminal. 12 13 What is THE COURT: What services of Apple, what service is Apple now providing to the defendant in this case? 14 MS. KOMATIREDDY: There are three services. One, 15 the actual pass code lock feature. 16 Apple currently owes and currently licences to the owner of 17 that cellphone. 18 THE COURT: The operating system which Can they do anything without taking back 19 something they have sold to the defendant or to somebody who 20 gave it to him, short of taking back something they have 21 already sold, can they do anything to defeat the encryption 22 here? 23 MS. KOMATIREDDY: 24 can assist us by bypassing the lock. 25 THE COURT: I'm sorry, short of taking? They Yes, for them to do that they have to RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 42 of 87 PageID #: 501 - Proceedings 1 take it back, you have to give it to them. 2 3 4 42 MS. KOMATIREDDY: phone. You are saying, take back the They already own the software. THE COURT: What can they do to the software? I 5 have to say, of all the very good arguments in your brief, the 6 thing about the end user license agreement struck me as a 7 total red herring. 8 agreement does in terms of regulating what any of the parties 9 here can do or can't do, that is of any relevance to the 10 11 I don't get at all, why what the license dispute here. MS. KOMATIREDDY: The relevant point is that Apple 12 owns and currently operates the software that is preventing 13 the federal warrant from being executed. 14 code lock is enabled and still active. 15 feature that deletes the contents of the phone after ten 16 failed attempts, is possibly enabled and could thwart 17 execution of the search warrant. 18 represented that the remote wipe is no longer available. 19 we can take that out of-- assuming that is true, we can take 20 that out of the analysis. 21 Because the pass Because the pass code I understand that Apple has So, The argument stands that it is Apple's software that 22 is currently operating, that stands between a Federal Court's 23 warrant being executed, and evidence of crime being -- 24 25 THE COURT: Let me ask you, I think we have all been searching for analogies one way or another here. RB OCR I have seen Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 43 of 87 PageID #: 502 - Proceedings - 43 1 some suggestions about the safe and you know conscripting the 2 locksmith. 3 It seems fanciful. But here is one that I think is not fanciful. The 4 last company that makes lethal injection drugs, decides to 5 stop doing it. 6 recent cases, gorilla warfare by these companies. 7 In fact Justice Alito referred to this in Right. So the last company that has been providing drugs 8 for execution, says to the Government, we are no longer going 9 to help you out when it is time to execute somebody in Terre 10 Haute. 11 Can -- are they thwarting a lawful death sentence by 12 doing that, and can they therefore be compelled under the All 13 Writs Act to re-import something that is held abroad or 14 release something from existing stock or actually manufacture 15 the drug anew? 16 MS. KOMATIREDDY: So, with each of these, it is a 17 case by case analysis. 18 factors under New York Telephone and the factors in the All 19 Writs Act. 20 applicable law is and I have to concede in this area I'm not 21 familiar with the expansive 8th Amendment Law on this. 22 I think we have to return to the I think you have to look at what the relevant THE COURT: In terms it is fact specific under the 23 burden, is that relationship close enough for purposes of the 24 first element of New York Tel, to say look, this company, you 25 know they have got the monopoly on this point on doing it, on RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 44 of 87 PageID #: 503 - Proceedings Now they are out of business. 44 1 making these drugs. 2 thwarting us from carrying out a lawful death sentence. 3 Does that get you passed the first step? 4 MS. KOMATIREDDY: They are Your Honor, I have to be honest 5 with you here, it is hard to say. 6 hesitate with this analysis. 7 there, we are not talking about an order that is a warrant 8 that can-- that can be simply executed but for one step in 9 between. 10 The analogy is different because We are talking about a potential death sentence issued by a jury. 11 THE COURT: Sorry. Look, that is not right. 12 an order of the Court. 13 the warrant is a Court order. 14 15 Here is the reason I It is The sentence is, a Court order just as MS. KOMATIREDDY: And the question is, whether the company that makes the injection. 16 THE COURT: They are the last company around and 17 there are fewer of them. 18 one. 19 deliberately to try to frustrate public policy, right. 20 don't want there to be executions, so we are going to withdraw 21 the drug from availability. 22 to do otherwise. 23 We get to the point where there is They say, you know what, they are not going to do it, MS. KOMATIREDDY: We The All Writs Act, can tell them That would depend on the law of 24 whether you can require a company. 25 several things. That could depend on The relevant Food and Drug law, whether you RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 45 of 87 PageID #: 504 - Proceedings 1 can require a company to develop a drug in that manner. 2 3 45 THE COURT: There is silence on this. exact same position as we are here. 4 We are in the You have silence. You are doing a really wonderful job of representing 5 the Government here, but you understand the question I'm 6 trying to ask. 7 8 MS. KOMATIREDDY: I do understand the question. It is a tough question. 9 The thing that is particularly tough about that 10 question is, it is hard to say, so there are two questions, 11 you have asked. 12 order. 13 have. One, does the All Writs Act permit that That requires considering all three of the factors. 14 THE COURT: I But that is not the question I asked. 15 The question I asked is, does the intent to thwart the 16 execution of that death sentence, bring the company closely 17 enough to thwarting of a lawful court order that you satisfied 18 the first element of New York Tel. 19 three elements, just the first. 20 MS. KOMATIREDDY: Not does it satisfy all So, I don't think it is intended 21 to thwart, but establishes the connection. Based on the case 22 law I reviewed from New York Tel and United States versus 23 Hall. 24 some way. 25 purpose. It is when the company's facilities are being used in I mean this context, in some way, for an illegal So in that context it would be the company so called RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 46 of 87 PageID #: 505 - Proceedings 1 facilities, drug making features are being used or not being 2 used. 3 THE COURT: 4 MS. KOMATIREDDY: Right. So, the difficult part of that 5 question is, understanding who is sufficiently closely 6 connected. 7 more closely connected. It may be that company, it may be someone else is 8 So I -- 9 THE COURT: 10 11 Like who? MS. KOMATIREDDY: It may be that you can-- the Federal Government can develop those things on its own. 12 THE COURT: You mean like here, the Government might 13 be able to find the technology and know how on its own, 14 perhaps by asking his. 15 MS. KOMATIREDDY: 16 THE COURT: 17 MS. KOMATIREDDY: 18 19 20 THE COURT: I know. Theoretically the Government can do this. 22 THE COURT: 25 I think I have addressed the his point. MS. KOMATIREDDY: 24 So. Right? 21 23 46 No, Your Honor. Theoretically, in the hypothetical, the Government can do it on its own. MS. KOMATIREDDY: The same here. Based on our investigation, we can't bypass the pass code on this particular phone. RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 47 of 87 PageID #: 506 - Proceedings 1 THE COURT: Right. 47 I am positing a scenario, where 2 there is nobody else who is making this drug. So I'm trying 3 to make it as close as possible. 4 the hypo, I really appreciate addressing the question I'm 5 trying to ask, which is, does it satisfy the first test, that 6 first prong of the New York Tel test in the -- that drug 7 scenario, context. 8 (Pause.) 9 MS. KOMATIREDDY: I just-- instead of fighting I apologize for taking a moment. 10 THE COURT: 11 If you want to consider it and get back to me, I 12 No problem. completely understand and that is fine. 13 14 These are hard questions. MS. KOMATIREDDY: Your Honor, the hypothetical is so inflammatory, I would like to consider it and get back to you. 15 THE COURT: It is purposefully so. Because to some 16 extent, what you are talking about, and this gets to very much 17 the burden in New York Tel. 18 a burden. 19 American people would not think that, you know, a company 20 would not want to help law enforcement. 21 You are saying, it is not much of And part of how you get there is, well, the But, at some point, not just a matter of marketing 22 and dollars and cents. At some point, a private actor, I'm 23 not saying necessarily Apple has. 24 want to do this. 25 we don't think should be done. Somebody can say we don't As a matter of conscience, this is something RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 48 of 87 PageID #: 507 - Proceedings 1 48 I'm trying to draw parallels intentionally to the 2 company that says, we don't think our drugs should be used to 3 kill people. 4 Can the All Writs Act compel service over a 5 conscientious objection which is very different from saying, 6 can it compel information or the use of a facility. 7 something just categorically different about compelling 8 service. 9 There is So, yes, it is intentionally a tough and 10 inflammatory hypothetical because I want to get a sense of how 11 far you are -- understanding of the All Writs Act goes. 12 13 MS. KOMATIREDDY: I'm happy to consider that further and get back to you on that Your Honor. 14 But I would note that in this case, there is no 15 conscientious objection. 16 without any objection. Apple has been doing this for years 17 THE COURT: Right. 18 MS. KOMATIREDDY: And they are more concerned about 19 public perception, which is a fair concern, but that is not 20 the law. 21 22 23 And, the law shouldn't change that perception. THE COURT: I don't know if it is or not. I really don't know. I am almost not completely exhausted the questions I 24 wanted to ask you, I very much appreciate how responsive you 25 have been, especially, you have indulged sort of my jumping RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 49 of 87 PageID #: 508 - Proceedings 1 2 3 4 49 all over the place. The last one, this goes back belatedly to Congressional inaction. There is a case from the Ninth Circuit, 1970, that 5 is cited but not really taken on analytically in New York Tel, 6 called application for United States for relief, Ninth 7 Circuit, 1970. 8 9 And, in that case, the Ninth Circuit did what I was suggesting before, sort of like looking at the sort of overall 10 state of the legislation, what has been done and what hasn't, 11 and denied the refund of the All Writs Act there. 12 What was going on there, was a request for telecom 13 assistance for a wire tap after the original statute was 14 passed in 1968, but before Congress acted to-- partly in 15 response to this case, to require telecom assistance. 16 New York Tel cites it, but I don't think they are 17 really saying they were wrong. 18 right either. 19 that seems to be disagreeing with you, about the meaning of 20 Congressional silence or the lack of affirmative legislation. 21 22 23 They weren't saying they were But it does have a reading of the All Writs Act Again, if you don't have a case clearly in mind that is fine, I will let you respond later. Did the Ninth Circuit get it wrong there, or can you 24 square it somehow with your understanding of the meaning of 25 Congressional inaction here. RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 50 of 87 PageID #: 509 - Proceedings 1 MS. KOMATIREDDY: 50 I need to review the case to get 2 back to you. 3 if it is a case about requiring assistance for Title III wire 4 tap and there is a Title III wire tap statute which in itself 5 is an extensive statute already in place. 6 presence of a complicated relatively exhaustive statutory 7 scheme. 8 it, that the entirety of that statutory scheme and absence of 9 specific authority which would otherwise be obvious, missing 10 The distinction that pops out from the outset is You have the So there is something to be said there for reading from that statutory scheme. 11 I am happy to review the case and follow up on that. 12 THE COURT: 13 14 15 16 17 I may well have skipped some things, but I want to hear from Apple, give it a chance as well. But, if you have not had a chance to get to some arguments, I want to hear them. MS. KOMATIREDDY: Your Honor, we are happy to hear from Apple. 18 THE COURT: You have been very patient there Apple. 19 MR. ZWILLINGER: 20 There were two points I wanted to emphasize and the Thank you, Your Honor. 21 Court touched on both of them. 22 time to underscore them. 23 But I just would take a little We do believe that providing expert services on a 24 device in the Government's custody, is different than 25 providing access to records or facilities that are in our RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 51 of 87 PageID #: 510 - Proceedings 1 51 possession and control. 2 In all of the cases that you mentioned, the 3 Government cites, involve records or facilities that are in 4 the third party's control. 5 the phone company, there are credit card transactions from a 6 credit card company, there were surveillance tapes in an 7 apartment complex. 8 control of a third party, but they were in the normal course 9 of their business. 10 For example, there were logs from They were not only in the possession and Here we put a device in the stream of commerce. The 11 Government is asking us to essentially do what they want and 12 would like to have their own agents do, which is perform 13 forensics services and unlock it. 14 does not have a precedent in the All Writs Act cases that have 15 been cited. That type of conscription So I wanted to focus on that. 16 The second is, the most important difference between 17 this and what was set out in New York Telephone, is that there 18 is no indication that Congress intended the Government to have 19 this power here. 20 In New York Telephone, there was a greater included 21 power. There was a greater power which was the power to wire 22 tap the contents of communications. 23 that surely has to include the lesser included power of 24 performing a pen register. 25 register would have frustrated the intent of Congress. RB And the Government said And not performing the pen OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 52 of 87 PageID #: 511 - Proceedings 1 In this situation it is the exact opposite. 52 Law 2 enforcement is seeking an order that the Congress has never 3 authorized, and it is not a subset of the authority that 4 Congress has already granted. 5 We are talking about CALEA. We agree, that this is 6 outside the bounds of CALEA, but we draw completely different 7 conclusions from that. 8 9 CALEA only covers data in transmissions, but only providers, only certain types of providers, providing certain 10 types of services, were given the obligation to build in a way 11 to assist law enforcement. 12 13 14 And, Ms. Komatireddy points out that Apple is outside that scope. (Transcript continues on next page.) 15 16 17 18 19 20 21 22 23 24 25 RB OCR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 53 of 87 PageID #: 512 53 1 THE COURT: 2 information service? 3 Are you inside the scope of the MR. ZWILLINGER: I need to get back to the Court on 4 that. I don't think we've taken a position on that, but we're 5 outside the scope of what's a required actor under CALEA. 6 THE COURT: Go ahead. 7 MR. ZWILLINGER: And CALEA is where Congress has 8 been debating making amendments or amending the statue to 9 encompass a wider variety of services and a wider variety of 10 providers and that's the debate that Congress needs to have. 11 What's going on here is this is not a gap in the law 12 that the All Writs Act would fill in. 13 to a new frontier and if the government wants these types of 14 authorities to require providers to provide forensic services 15 to the government, I think the place to go is Congress because 16 we can't use the All Writs Act which, as we had some 17 discussion, was passed in 1789 and amended in 1946, to 18 circumvent this question. 19 which is what is the balance between privacy and government 20 access today and Congress needs to speak on that and if we 21 give the government the power they're asking under the All 22 Writs Act, we circumvent that entire debate. 23 THE COURT: This is pushing the law This is the question of the time Can I ask, on the issue of burden, even 24 if you're not sort of legally foreclosed in any way from 25 making the arguments you are making, I am troubled by the fact CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 54 of 87 PageID #: 513 54 1 that there is a history here and it's not just, you know, 2 saying here is what you need to do, government, if you want 3 something from us. 4 is hard for me to think of an analogous situation where 5 somebody who does not want to do something says, but I'll tell 6 you how to get it done. You are writing a request for them and it 7 MR. ZWILLINGER: 8 THE COURT: 9 kind of help? Let me address that. What explains why you are providing this Is it not that, hey, you know, we want to 10 foster law enforcement, we do, we just don't want to be seen 11 out there as, you know, compromising the privacy of our users' 12 devices? 13 14 15 MR. ZWILLINGER: Right. So let me address that in two ways. First, the legal backdrop of this, by the way, is 16 under New York Tel, the question was is the activity something 17 that the provider does in their normal course of business and 18 is it offensive in any way to the provider. 19 Apple doesn't do this and never did this 20 voluntarily. 21 perform these services when it did it and all of that was done 22 in an ex parte proceeding, the same type of proceeding that 23 would result in the authorization of a search warrant. 24 25 Apple was always compelled by a court order to THE COURT: I'm sorry. ex parte proceedings. CMH It's not just these are You get one of these orders. OCR RMR CRR FCRR If you Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 55 of 87 PageID #: 514 55 1 don't like it, you know you can go to a court and say, you 2 know, relieve us from this obligation or, if you've had 3 several of these things and you don't want to keep doing it, 4 you can seek declaratory judgment, right, because there's 5 clearly the ongoing controversy that will get you past the 6 jurisdictional bar. 7 If you didn't want to do this, if it was really 8 burdensome to you, do you disagree that you had steps 9 available to you that you have just not taken? 10 MR. ZWILLINGER: Apple could have challenged the 11 order that they received, there's no question it could have, 12 but also the weight of the authority was that Apple was 13 regularly receiving these orders from magistrates, receiving 14 these orders from courts indicating that Apple was being 15 compelled to do this and no court and no state court or 16 federal court had invited Apple to submit its views. 17 THE COURT: But, clearly, you don't need to be 18 invited to court when you think your interests are at stake 19 and you have been getting these orders but from the very few 20 that I have seen with the exception of the one in the Southern 21 District which I don't think was to Apple, whatever XXX Inc. 22 was, it appears not to be Apple, but there has been one that's 23 been publicly available out of Oakland. 24 25 From all I can see in these cases, there are boilerplate applications and boilerplate orders and nothing CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 56 of 87 PageID #: 515 56 1 about them, again, from the limited slice of it I've seen, 2 that would have suggested to you, I think, well, it's futile 3 for us to go to court and try to win the case because they've 4 decided the issue. 5 MR. ZWILLINGER: Well, I would think the fact that 6 we were repeatedly getting these orders and being contacted by 7 law enforcement did play into the fact that it seemed that 8 this had been somewhat settled views and settled authority 9 from multiple judges. 10 THE COURT: But, look, you know how it works, 11 especially at the magistrate level. 12 very pro forma applications and orders that get signed and the 13 fact that that happens doesn't necessarily indicate that the 14 issue has been given the kind of thought that would be 15 required if you were to challenge it and seek to vindicate 16 your perceived rights. 17 There are plenty of just So, I am just trying to understand why I shouldn't 18 read something into the fact that you have never tried to 19 challenge these orders. 20 21 22 MR. ZWILLINGER: Let me make one comment about the language though because I think it's important. One of the reasons for the language that we offered 23 to law enforcement is because we were getting so many orders 24 and the orders were not consistent as to what Apple was and 25 wasn't required to do, and because there were questions CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 57 of 87 PageID #: 516 57 1 related to, you know, does Apple have to decrypt the device, 2 does Apple have to do X or Y, certain language was come up 3 with so that if Apple saw that in an order, it would be clear, 4 one, that it was being compelled to perform these services, 5 and it wasn't, you know, any voluntary action on its part, 6 two, exactly what services it was being required to do and 7 what it wasn't required to do. 8 9 So, the point of the standardized language was, in fact, because we were getting these with such frequency, that 10 we wanted to accomplish that and make it clear that we were 11 being compelled. 12 THE COURT: Okay. 13 MR. ZWILLINGER: So I don't think giving the 14 language is a concession to the fact that the All Writs Act 15 provides authority to issues those types of orders. 16 THE COURT: Look, your language doesn't invoke the 17 All Writs Act, I get that, but in terms of the burden, first, 18 you haven't challenged it and you still haven't explained why 19 not. 20 about consistency, but you also did not say anything about 21 burdens beyond the immediate expense. 22 Second, you provided language for reasons I understand If you are saying we want to craft language that is 23 going to say here's exactly what we have to do, you require, 24 if I'm not mistaken -- I don't have the language in front of 25 me. Do you require compensation? CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 58 of 87 PageID #: 517 58 1 2 MR. ZWILLINGER: compensation. 3 4 No, we've never required THE COURT: But you can, and you don't do anything about that. 5 I mean, the point is well taken that Apple is a 6 pretty darn big company, maybe they don't care so much about 7 the costs of these 70 things in the big picture. 8 seems to me that there's a dog that didn't bark here. 9 10 MR. ZWILLINGER: It just I think the way to address this, Your Honor, is the following. 11 Right now, Apple is aware that customer data is 12 under siege from a variety of different directions. 13 the privacy and security of customer data been as important as 14 it is now. 15 which is why we're only talking here about IOS 7 systems, 16 operating systems IOS 8 and IOS 9, that puts Apple in a 17 position where it cannot do this, that is, going forward with 18 390 percent of the devices involved, Apple cannot perform 19 these services. 20 of being in a position where it can be used as an attack 21 vector or in any way to compromise the security and privacy of 22 customer devices. 23 Never has And, in fact, Apple built an operating system So, Apple has taken itself out of the middle So, when the court asks Apple today does the All 24 Writs Act provide authority to force it to do this, Apple says 25 no, it does not, because what we are being forced to do is CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 59 of 87 PageID #: 518 59 1 expert forensic services, we're being forced to become an 2 agent of law enforcement and we cannot be forced to do that 3 with our old devices or with our new devices. 4 THE COURT: One of the arguments you make about 5 burden is that complying with the order implicates the trust 6 relationship that you have with your customers. 7 I understand why. 8 9 I mean, as you have taken pains to make clear in the language you propose, you only break into one of these phones 10 if you're compelled by law. 11 to follow the law. 12 consumers have? 13 I'm not sure Well, we all have an obligation So how does that imperil the trust MR. ZWILLINGER: Well, it's a somewhat ironic 14 question in light of the prior question which is why hasn't 15 Apple been challenging these in the past. 16 in a position where it is no longer going to be able to turn 17 these devices and bypass them and give data to law enforcement 18 and now Apple is being invited by this court to comment on its 19 views, I think Apple's views are we are not in the business of 20 accessing our customers' data, we have never been in the 21 business of accessing our customers' data and we shouldn't be 22 in that business either on our own or being conscripted by law 23 enforcement. 24 25 THE COURT: Okay. That is, if Apple Explain to me sort of the path from you're ordered to do something unwillingly to because you CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 60 of 87 PageID #: 519 60 1 did so, consumers lose confidence in you. 2 MR. ZWILLINGER: I think it's the same question you 3 asked me a minute ago, why didn't Apple challenge the prior 4 orders. 5 6 7 8 9 THE COURT: question. No, it's not. It's really a different That's why I'm asking it again. In other words, tell me the thought process in some hypothetical consumer's head. MR. ZWILLINGER: Well, I think a hypothetical 10 consumer could think if Apple is not in the business of 11 accessing my data and if Apple has built a system to prevent 12 itself from accessing data, why is it continuing to comply 13 with orders that don't have a clear lawful basis in doing so. 14 THE COURT: Well, clear lawful basis, but when a 15 court says you must do it, and I have considered your 16 arguments about a lawful basis, and still saying, sorry, you 17 have an obligation or you're paying a fine or somebody is 18 going to jail, how does that imperil trust? 19 MR. ZWILLINGER: So I think the answer is if it 20 becomes crystal clear, if you say and whatever other court 21 this goes to after you say that the All Writs Act provides 22 clear authority to do this and that we have found that there's 23 sufficient basis in law to conscript you into government 24 service, then it wouldn't undermine customer trust, but at 25 this point, it does because right now, it's not clear. CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 61 of 87 PageID #: 520 61 1 2 THE COURT: But, see, that's why I'm having trouble and it does go back to the earlier question. 3 The thing that does seem to imperil consumer trust 4 is not that you comply with a court order, but that you don't 5 take all the steps available to you to fight that order before 6 complying. 7 Here, you're doing that at invitation and I don't 8 know what plans, if any, and you don't have to tell me what 9 lies ahead if I grant the government's motion, but you have 10 had apparently 70 prior instances where you have not taken the 11 steps available to you. 12 but complying with an order after you fight it, how is that 13 going to do it? 14 imperil trust to the point that it's hard for me to put much 15 weight on your burden argument if in the past you haven't 16 taken these steps. That I can see imperils the trust, And if you want, address why doesn't it 17 MR. ZWILLINGER: Well, I think of two things. 18 One is having been in this area of law a while, we 19 have seen the law evolve. 20 site data was available with a mere subpoena by the 21 government. 22 was available with a subpoena or court order by the government 23 and now it's accepted as somewhat orthodoxy that a warrant is 24 required for contents of communications. 25 Right? There was a time when cell There was a time when contents of communications So, the law evolves and by understanding that the CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 62 of 87 PageID #: 521 62 1 All Writs Act doesn't provide the clear cut authority that 2 Apple once may have thought it did, I think Apple has to 3 continue to say that if Apple is forced to do what it does not 4 want to do -- right? 5 is Apple saying it does not want to do this. 6 it does not want to do this. 7 business of being a mechanism by which customer data is 8 disclosed. 9 required to do so, it doesn't think that that's the position The court posited the question before, Apple is saying It does not want to be in the Although it will comply with lawful orders when 10 that Apple should be in and Apple has communicated to its 11 consumers that it doesn't want to be in that position. 12 13 THE COURT: I was discussing with Ms. Komatireddy alternate means that might be available. 14 MR. ZWILLINGER: 15 THE COURT: Yes. What's your take on, from both a 16 technical level and the legal one, the alternative of subpoena 17 or other process ordering Apple to tell the government how to 18 break into the phone? 19 20 MR. ZWILLINGER: clarify something on the record -- 21 THE COURT: 22 MR. ZWILLINGER: 23 So, before I address that, can I Yes. -- with regard to the question you asked about the Djibo case? 24 THE COURT: 25 MR. ZWILLINGER: CMH Yes. OCR It was my understanding that RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 63 of 87 PageID #: 522 63 1 Ms. Komatireddy said that this concerns an IOS 8 system. 2 Apple is not aware of any mechanism to break into an IOS 8 or 3 IOS 9. 4 in the testimony, but the testimony did say that the declarant 5 here or the person testifying, the forensic expert, said that 6 he personally broke an IOS, an iPhone 4S running 7.0. 7 Not aware of it at all. THE COURT: I think this was speculation But he was also saying that he 8 understands that it has been used successfully for 8.1.2 which 9 is the phone -- 10 MR. ZWILLINGER: We're not aware of that. We're not 11 aware of that indication. 12 parties advertising the ability, forensic service providers 13 the ability to access a 7.0 phone. 14 verification of that, but we had heard that as well. 15 may be other means for this case for this phone although we 16 don't think those exist in the future. We have heard that there were third We have no independent So there 17 As to your question, however, we do agree with the 18 government that we do not think there's an easy mechanism by 19 which Apple can disclose to the government the method of 20 access. 21 THE COURT: Technically or legally? 22 MR. ZWILLINGER: Well, we don't think, legally, we 23 can be forced but, technically, we don't think it would work. 24 The way the system is configured, it requires certain 25 authentication from our servers and on that point, I think CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 64 of 87 PageID #: 523 64 1 Ms. Komatireddy was correct that we couldn't provide the 2 instruction manual that would just work. 3 THE COURT: Just to close the loop, why, legally? 4 What would be the bar to the subpoena or even an All Writs Act 5 order because information is clearly something that an All 6 Writs Act order covers obviously? 7 MR. ZWILLINGER: I think it would be forcing the 8 company to disclose some of the most confidential trade 9 secrets it has and I think Apple would find that the legal 10 justification in this case wouldn't be there for that type of 11 order, we would argue. 12 THE COURT: Burden or just not -- 13 MR. ZWILLINGER: Even more. I mean, we're talking 14 about at this point, you know, the most confidential trade 15 secret issue, but we don't think we have to get there. 16 agree with the government that the system requires Apple 17 authentication. 18 19 THE COURT: Okay. We There was another burden question I wanted to ask you and it slipped my mind unfortunately. 20 MR. ZWILLINGER: 21 THE COURT: 22 MR. ZWILLINGER: Yes. If I could, Your Honor. Go ahead, please. I do think Ms. Komatireddy's 23 argument or review of what Congress has been discussing is far 24 too narrow. 25 enforcement access to certain types of communications. She said the debate was just about providing law CMH OCR RMR CRR FCRR I Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 65 of 87 PageID #: 524 65 1 don't think that's what the debate has been about. 2 has been an entire societal debate about the role of providers 3 and being required to assist law enforcement and I think the 4 debate covers this topic and a variety of other topics. 5 The debate So, this doctrine that Congressional inaction can't 6 be used as a basis for making this decision I think doesn't 7 apply in All Writs Act. 8 to figure out what Congress has passed and hasn't passed and 9 are you filling in a scheme that has some interstitial The whole point of All Writs Act is 10 problems or are you giving authority that Congress never 11 intended. 12 done and hasn't done. 13 which certain types of providers are required to provide 14 assistance for law enforcement. 15 statute. 16 So I think you have to look at what Congress has CALEA is a comprehensive scheme by That's the title of the So, I don't think her view is correct. I think, 17 one, you have to consider what Congress has chosen not to do 18 and, two, you have to lock at CALEA and say what was the 19 bargain struck with CALEA, who was required to perform 20 services and who was not, and then decide whether this is an 21 issue that the court can fill in. 22 23 24 25 THE COURT: This does remind me of the question I had before and it was somewhat related. Look, is it really burdensome for you in a bigger picture sense to do what the government wants here? CMH OCR RMR CRR FCRR And there Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 66 of 87 PageID #: 525 66 1 2 are two things I have in mind. One is, in sort of a narrower sense, your brief 3 almost makes the argument. It's an advertisement for buying 4 our new phones, right, because we won't be able to do this. 5 If you just get our newer phone, we can't do this for the 6 government. So, yes, sell more phones. 7 The second one, and not quite as facetiously, there 8 is a broader societal debate and it seems that it's reached a 9 point somewhat to your liking quite recently which is as 10 things currently stand, the administration isn't seeking 11 back-door legislation. 12 Are you worried at all that a decision here and in 13 other courts like it saying you can't rely on the All Writs 14 Act which the government may have been assuming it could would 15 reopen the question for the government and for Congress to 16 have back-door legislation. 17 18 19 In other words, are you better off having the transitory orders under the All Writs Act? MR. ZWILLINGER: I think on the second point first, 20 Apple is better off for having a robust public debate that if 21 new authority is going to be granted and we do this, leading 22 down the road to all sorts of new authorities, it should be 23 done by Congress. 24 advantageous or not, the process is right to go to Congress 25 and have a public debate and not to do it this way. CMH So whether advantageous -- the result is OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 67 of 87 PageID #: 526 67 1 THE COURT: Okay. 2 MR. ZWILLINGER: Going back to your first point 3 about the advertisement for the new phones, one of the 4 problems with the type of authority that the government is 5 seeking is that it's hard to draw the line where it stops. 6 Would it stop at unlocking? 7 all the same things about modifying software? 8 they claim we have a Title III order and the only way to get 9 it to be implemented is if we ask you to you make changes to 10 Why wouldn't the government say Why wouldn't the product? 11 THE COURT: There was a case like that, wasn't 12 there? I'm blanking on it. 13 down an update to the phone that would allow the government to 14 do something that it had gotten authority for. 15 any bells? 16 MR. ZWILLINGER: 17 THE COURT: 18 19 It was essentially trying to set Does that ring We're not aware. I'm sorry. I hope I'm not making it up. Go ahead. MR. ZWILLINGER: The point is that the line drawing 20 question, that is, the authority they're seeking, if Apple 21 stays sufficiently involved with a product that's admittedly 22 locked and in a draw, the argument under New York Tel prong 23 one that we're sufficiently involved in this product, we're 24 doing nothing with this device right now. 25 drawer locked. CMH It's sitting in a We're providing no services to it. OCR RMR CRR FCRR If the Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 68 of 87 PageID #: 527 68 1 government thinks that we're sufficiently entangled with it 2 such that we can be ordered to take affirmative steps, it 3 doesn't seem obvious where that line stops. 4 So, the question is isn't this just solved, 5 everybody will just buy the new phone, no, not if this 6 authority that the government is seeking is granted because it 7 is not clear how far it will extend. 8 9 THE COURT: All right. from making other arguments you wanted to make. 10 MR. ZWILLINGER: 11 THE COURT: 12 (Pause.) 13 MR. ZWILLINGER: 14 17 18 19 If you would give me one moment. Sure. Yes. Your Honor, I think we've made all the affirmative points. 15 16 I didn't want to keep you THE COURT: Do you want to add something in response? MS. KOMATIREDDY: Yes, Your Honor. I just wanted to make two points to supplement the record. First, I know the Court's main question was what All 20 Writs Act authority is there to require actual assistance, 21 services, not just information. 22 THE COURT: 23 MS. KOMATIREDDY: Yes. And I think a fair way to 24 characterize what's going on here is that we are asking for 25 technical assistance. CMH We're also asking for information as OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 69 of 87 PageID #: 528 69 1 counsel just represented, the actual bypass and process 2 information required from Apple's servers that it has. 3 If you look at New York Telephone and one of the 4 other cases that we've cited from the District of Puerto Rico, 5 In Re Application, which orders the phone company to assist in 6 essential monitoring, in those cases, the court issues All 7 Writs Act orders both for information and for technical 8 assistance in order to effectuate that particular obtaining of 9 information. So, labor is conceived as part of the types of 10 assistance that a court can require. 11 MR. ZWILLINGER: Your Honor, I'm very glad she 12 brought up that District of Puerto Rico case because I think 13 she's reading it exactly wrong. 14 under the All Writs Act in that case. 15 the All Writs Act did not provide a basis for authority and 16 said Rule 41 provided the authority. 17 THE COURT: The court denied authority The court ruled that I'm reminded of Judge Nickerson who 18 argued before the Supreme Court. 19 said one thing and another one thought it said something. 20 lawyers argued very different readings of the same case and a 21 Justice said, well, how are we supposed to resolve this? 22 Judge Nickerson said, I'm afraid Your Honor will just have to 23 read the case. The And I have to do that. 24 MR. ZWILLINGER: 25 language is fairly clear. CMH One Justice thought a case OCR I would proffer that but the The government has -- issuance of RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 70 of 87 PageID #: 529 70 1 the requested order directly under the All Writs Act would not 2 be necessary or appropriate in aid of this court's 3 jurisdiction where no jurisdiction exists thus, there must be 4 a separate jurisdictional basis for me to grant this 5 application. 6 7 8 9 MS. KOMATIREDDY: You're right, and the separate jurisdictional basis is Rule 41. I mean, the thing is with these All Writs Act orders, historically what's happened is the government has 10 asked for two things. 11 provide, to allow it to obtain a certain amount of information 12 and provide, through the All Writs Act, access and authority 13 to get that information and then, second, for the court to 14 instruct a third party to assist in obtaining that 15 information. 16 One, it's asked for the court to Here, we don't have to do that. This case is 17 actually more narrow because the government has separate legal 18 authority, a search warrant, to obtain the data. 19 asking for is technical assistance. 20 THE COURT: 21 The Pennsylvania versus Marshals case, the court 22 ended up saying there that the court could not require the 23 Marshal Service to transport a prisoner who was required to be 24 in federal court. 25 I get it. All we're Right? MS. KOMATIREDDY: CMH One last thing. OCR Right, but, Your Honor, in that RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 71 of 87 PageID #: 530 71 1 case, there was actually a habeas statute that was directly on 2 point and the habeas statute had a provision that said that 3 state court personnel were required to do the transfer. 4 that instance, again, you have a statute that is not on point. 5 Very different from here. 6 THE COURT: So in If not by statute, I know it's 7 counterfactual, would it pass the burden test and all the 8 other prongs of New York Tel? 9 MS. KOMATIREDDY: I think so. It depends a little 10 bit on the burden. 11 connection is easier there because if it's a transfer as it 12 was in that case of a state prisoner to a federal facility, at 13 least the United States Marshals have some relation to the 14 federal, to that part of the system. 15 16 I think the question about close THE COURT: the transport. But they're not standing in the way of They're just not doing it. 17 MS. KOMATIREDDY: 18 THE COURT: 19 be very analogous to this case. 20 Yes. In other words, in that way, it seems to MS. KOMATIREDDY: That's true, Your Honor, and I 21 think this is why it's important to look at all of the factual 22 situations of that particular circumstance because in all 23 likelihood, if I were to suppose what would happen in that 24 situation, the court gives an order to transfer a particular 25 prisoner, the government probably would just send an agent as CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 72 of 87 PageID #: 531 72 1 opposed to request the assistance of marshals. 2 3 THE COURT: Right. You said there was a second case. 4 MS. KOMATIREDDY: Yes, Your Honor. We followed up 5 with the Assistant who handled the case in Djibo, 15-CR-088, 6 and I'll at least provide some additional information on how 7 we believe we got into this pass code, but I want to represent 8 to the court that I'll personally follow it up after our 9 hearing is over. 10 My understanding is I'm advised the technology in 11 that case worked by trying every possible pass code. 12 case, they did not have a reason to believe that the feature 13 that initiates a wipe after ten failed attempts was activated. 14 Here -- 15 THE COURT: In that The testimony, and I know you haven't 16 had a chance to read it, but the testimony talks about that 17 and defeating that, I won't pretend to have followed exactly 18 the technical explanation, but to defeat that, rather than it 19 wasn't turned on. 20 MS. KOMATIREDDY: All right. You know, in terms of 21 better practice, let me consult with the AUSA and I'll get 22 back to you. 23 THE COURT: Okay. 24 All right. Everybody, this has been very, very 25 helpful and really wonderful advocacy by both sides. CMH OCR RMR CRR FCRR I am Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 73 of 87 PageID #: 532 73 1 happy to set a schedule for you to get back to me on the 2 various items that have come up, just a letter from each side. 3 4 How long do you want? letters rather than giving one side priority over the other. 5 6 MS. KOMATIREDDY: 9 We would request two days so Wednesday. 7 8 I would like simultaneous THE COURT: Wednesday. Would that work for you guys? MR. ZWILLINGER: 10 THE COURT: 11 MR. ZWILLINGER: 12 THE COURT: I think we can do Wednesday. Okay. Great. Thank you, Your Honor. All right. 13 out as quickly as I can. 14 Thank you all. 15 MS. KOMATIREDDY: 16 (Matter concluded.) Then I will get a decision Have a very good day. Thank you, Judge. 17 18 19 20 21 22 23 24 25 CMH OCR RMR CRR FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 74 of 87 PageID #: 533 1 718 [1] - 2:2 1 10th [2] - 27:10, 28:12 11201 [1] - 1:18 11:30 [1] - 1:12 15 [2] - 1:8, 2:10 15-CR-088 [1] - 72:5 1789 [3] - 19:10, 19:13, 53:17 1900 [1] - 1:23 1902 [2] - 1:8, 2:10 1946 [1] - 53:17 1949 [1] - 19:15 1968 [1] - 49:14 1970 [3] - 27:10, 49:4, 49:7 2 20036 [1] - 1:23 2008 [2] - 8:9, 8:21 2014 [2] - 5:15, 6:19 2015 [3] - 1:12, 3:12, 6:19 225 [1] - 2:1 26 [1] - 1:12 271 [1] - 1:18 3 30 [1] - 18:21 390 [1] - 58:18 3rd [1] - 3:13 4 41 [4] - 30:10, 69:16, 70:7 429 [1] - 27:10 434-to-1 [1] - 16:3 435 [2] - 16:7, 16:14 4S [1] - 63:6 5 535 [1] - 15:16 6 613-2538 [1] - 2:2 66 [1] - 27:10 6th [2] - 6:5, 7:6 7 7 [4] - 20:14, 20:16, 33:25, 58:15 7.0 [2] - 63:6, 63:13 70 [3] - 8:10, 58:7, 61:10 70-cases [1] - 24:19 CMH 8 8 [4] - 20:25, 58:16, 63:1, 63:2 8.1.2 [3] - 4:17, 33:20, 63:8 8th [1] - 43:21 9 9 [3] - 3:12, 58:16, 63:3 A a.m [1] - 1:12 ability [3] - 16:23, 63:12, 63:13 able [6] - 4:5, 17:2, 34:1, 46:13, 59:16, 66:4 abroad [1] - 43:13 absence [1] - 50:8 academic [1] - 36:15 accept [1] - 37:12 accepted [1] - 61:23 access [13] - 10:8, 10:9, 10:10, 13:6, 16:10, 21:2, 50:25, 53:20, 63:13, 63:20, 64:25, 70:12 accessed [2] - 4:10, 32:1 accessing [4] - 59:20, 59:21, 60:11, 60:12 accommodate [1] - 7:20 accompanied [1] - 22:3 accomplish [1] - 57:10 account [1] - 15:4 achieved [1] - 37:3 acknowledge [2] - 11:20, 21:6 act [4] - 14:22, 16:19, 26:3 Act [62] - 15:5, 15:13, 15:22, 16:17, 17:20, 18:14, 18:22, 19:4, 19:8, 19:9, 19:10, 20:24, 26:13, 26:17, 26:22, 27:14, 28:1, 28:5, 28:9, 29:17, 30:3, 30:7, 31:16, 31:18, 31:20, 34:14, 35:8, 36:14, 36:17, 36:21, 37:10, 39:3, 43:13, 43:19, 44:21, 45:11, 48:4, 48:11, 49:11, 49:18, 51:14, 53:12, 53:16, 53:22, 57:14, 57:17, 58:24, 60:21, 62:1, 64:4, 64:6, 65:7, 66:14, 66:18, 68:20, 69:7, 69:14, 69:15, 70:1, 70:8, 70:12 Act's [1] - 18:23 acted [1] - 49:14 action [7] - 14:19, 15:3, 32:25, 39:6, 40:9, 41:2, 57:5 actions [1] - 41:8 activated [1] - 72:13 active [1] - 42:14 activity [1] - 54:16 actor [2] - 47:22, 53:5 actual [8] - 14:19, 15:7, 28:23, 30:17, 38:21, 41:15, 68:20, 69:1 OCR RMR CRR add [2] - 11:7, 68:15 additional [1] - 72:6 address [7] - 17:3, 21:17, 54:7, 54:13, 58:9, 61:13, 62:19 addressed [2] - 21:24, 46:17 addresses [2] - 38:17, 38:18 addressing [2] - 38:23, 47:4 administration [1] - 66:10 admissible [1] - 32:9 admittedly [1] - 67:21 advantageous [2] - 66:23, 66:24 advertisement [2] - 66:3, 67:3 advertising [1] - 63:12 advised [1] - 72:10 advocacy [1] - 72:25 affect [1] - 14:6 affects [1] - 20:1 affirmatively [1] - 40:6 afford [1] - 4:22 Affordable [2] - 18:22, 18:23 afforded [1] - 28:8 afraid [1] - 69:22 agencies [3] - 6:25, 7:12, 35:3 agency [1] - 35:10 agenda [2] - 18:13, 20:5 agent [3] - 33:15, 59:2, 71:25 agents [4] - 4:4, 5:10, 6:9, 51:12 ago [6] - 5:13, 6:3, 9:15, 23:9, 36:17, 60:3 agree [6] - 6:15, 9:24, 37:16, 52:5, 63:17, 64:16 agreeable [4] - 37:3, 37:4, 38:11 agreement [3] - 17:15, 42:6, 42:8 ahead [5] - 20:20, 53:6, 61:9, 64:21, 67:18 aid [1] - 70:2 aided [1] - 2:4 airplane [1] - 6:9 AL [1] - 1:7 alerted [1] - 3:8 Alito [1] - 43:5 allegation [1] - 40:5 allow [6] - 4:1, 16:2, 26:17, 33:22, 67:13, 70:11 allowing [1] - 37:15 allows [3] - 29:23, 33:12, 35:7 almost [2] - 48:23, 66:3 alone [2] - 32:2, 33:12 alternate [1] - 62:13 alternative [1] - 62:16 alternatives [2] - 7:9, 19:22 Ameet [1] - 2:17 AMEET [1] - 1:20 amended [1] - 53:17 amending [1] - 53:8 Amendment [1] - 43:21 amendments [1] - 53:8 American [4] - 9:20, 11:8, 47:19 Americans [5] - 11:16, 12:1, 12:2, FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 75 of 87 PageID #: 534 2 13:9, 13:17 amount [1] - 70:11 analogies [1] - 42:25 analogous [2] - 54:4, 71:19 analogy [1] - 44:6 analysis [9] - 14:5, 25:25, 26:3, 26:6, 27:17, 30:12, 42:20, 43:17, 44:6 analytic [1] - 31:1 analytically [3] - 26:15, 26:22, 49:5 anew [1] - 43:15 announce [1] - 12:20 announced [1] - 13:3 answer [6] - 5:5, 23:25, 27:4, 28:19, 39:11, 60:19 antiquated [1] - 19:10 anyway [3] - 6:3, 26:9, 29:4 apartment [1] - 51:7 apologize [2] - 24:6, 47:9 appeal [1] - 10:19 appearances [1] - 2:13 APPEARANCES [1] - 1:16 apple [1] - 28:24 APPLE [1] - 1:4 Apple [111] - 1:22, 2:10, 2:21, 6:20, 7:14, 7:15, 7:18, 7:20, 7:23, 8:9, 8:12, 8:20, 8:22, 9:3, 9:10, 9:13, 9:14, 9:15, 10:6, 10:14, 10:20, 10:21, 10:23, 11:3, 11:10, 11:17, 12:10, 12:13, 12:18, 13:6, 13:9, 13:12, 13:24, 17:24, 20:16, 21:16, 23:7, 23:11, 24:7, 24:8, 24:23, 25:18, 28:22, 29:17, 29:21, 30:1, 30:18, 30:22, 31:11, 32:13, 32:14, 32:21, 32:25, 33:8, 33:23, 35:25, 39:22, 40:6, 41:1, 41:9, 41:12, 41:13, 41:16, 42:11, 42:17, 47:23, 48:15, 50:13, 50:17, 50:18, 52:12, 54:19, 54:20, 55:10, 55:12, 55:14, 55:16, 55:21, 55:22, 56:24, 57:1, 57:2, 57:3, 58:5, 58:11, 58:14, 58:16, 58:18, 58:19, 58:23, 58:24, 59:15, 59:18, 60:3, 60:10, 60:11, 62:2, 62:3, 62:5, 62:10, 62:17, 63:2, 63:19, 64:9, 64:16, 66:20, 67:20 Apple's [13] - 7:13, 8:5, 9:16, 9:18, 24:21, 25:5, 25:6, 25:9, 25:16, 29:12, 42:21, 59:19, 69:2 applicability [6] - 14:22, 26:8, 26:16, 27:19, 28:10, 31:3 applicable [1] - 43:20 application [11] - 5:17, 5:21, 5:24, 6:2, 9:6, 13:4, 20:14, 28:5, 31:16, 49:6, 70:5 Application [1] - 69:5 applications [2] - 55:25, 56:12 applied [1] - 8:3 applies [1] - 26:4 apply [3] - 20:24, 26:3, 65:7 applying [1] - 7:16 appreciate [4] - 3:2, 12:10, 47:4, 48:24 approach [3] - 37:11, 37:13 appropriate [2] - 27:17, 70:2 area [3] - 30:25, 43:20, 61:18 CMH argue [1] - 64:11 argued [2] - 69:18, 69:20 argument [11] - 2:9, 11:15, 13:17, 23:20, 39:16, 39:20, 42:21, 61:15, 64:23, 66:3, 67:22 ARGUMENT [1] - 1:14 arguments [6] - 42:5, 50:15, 53:25, 59:4, 60:16, 68:9 aside [1] - 10:19 assertion [1] - 3:16 ASSIST [1] - 1:5 assist [8] - 8:10, 26:25, 38:25, 41:24, 52:11, 65:3, 69:5, 70:14 Assist [1] - 2:11 assistance [26] - 6:20, 7:11, 7:13, 8:2, 9:12, 9:14, 9:16, 12:15, 14:13, 24:7, 26:23, 27:15, 27:16, 28:8, 36:1, 49:13, 49:15, 50:3, 65:14, 68:20, 68:25, 69:8, 69:10, 70:19, 72:1 assistant [2] - 16:22, 33:18 Assistant [3] - 1:21, 2:17, 72:5 assisting [1] - 10:8 assume [4] - 6:17, 12:17, 16:16, 20:9 assuming [3] - 20:6, 42:19, 66:14 AT&T [1] - 21:9 atmosphere [1] - 10:1 attached [4] - 5:16, 5:20, 5:24, 6:1 attack [1] - 58:20 attempted [1] - 7:1 attempting [1] - 6:8 attempts [2] - 42:16, 72:13 attention [4] - 3:7, 3:15, 3:23, 4:21 Attorney [1] - 1:17 Attorneys [2] - 1:21, 2:18 Attorneys' [1] - 35:5 AUSA [1] - 72:21 authenticate [2] - 24:11, 32:7 authentication [2] - 63:25, 64:17 authorities [2] - 53:14, 66:22 authority [33] - 9:9, 9:10, 13:5, 16:1, 17:14, 17:20, 18:5, 18:10, 18:20, 19:5, 20:3, 29:20, 38:19, 50:9, 52:3, 55:12, 56:8, 57:15, 58:24, 60:22, 62:1, 65:10, 66:21, 67:4, 67:14, 67:20, 68:6, 68:20, 69:13, 69:15, 69:16, 70:12, 70:18 authorization [1] - 54:23 authorize [1] - 14:15 authorized [1] - 52:3 availability [1] - 44:21 available [14] - 7:9, 8:12, 26:10, 30:4, 31:4, 35:4, 42:18, 55:9, 55:23, 61:5, 61:11, 61:20, 61:22, 62:13 aware [10] - 12:17, 16:16, 16:18, 16:25, 58:11, 63:2, 63:3, 63:10, 63:11, 67:16 B back-door [2] - 66:11, 66:16 OCR RMR CRR backdoor [4] - 12:21, 12:23, 12:24, 13:21 backdrop [1] - 54:15 background [3] - 16:18, 20:7, 20:8 badly [1] - 38:9 bag [1] - 33:2 balance [1] - 53:19 balk [1] - 13:10 ban [2] - 14:13, 16:10 bank [2] - 40:23, 41:8 bar [2] - 55:6, 64:4 bargain [1] - 65:19 bark [1] - 58:8 based [8] - 8:13, 11:2, 12:8, 12:12, 33:24, 34:3, 45:21, 46:24 basic [5] - 3:15, 12:25, 13:19, 13:21, 13:23 basis [10] - 24:2, 40:25, 60:13, 60:14, 60:16, 60:23, 65:6, 69:15, 70:4, 70:7 Battington [2] - 27:21, 28:2 become [2] - 9:3, 59:1 becomes [1] - 60:20 BEFORE [1] - 1:14 began [1] - 6:9 behalf [2] - 34:4, 34:6 belatedly [1] - 49:2 bells [1] - 67:15 best [2] - 11:22, 11:24 better [4] - 13:2, 66:17, 66:20, 72:21 between [4] - 42:22, 44:9, 51:16, 53:19 beyond [3] - 21:1, 37:5, 57:21 bi [1] - 4:8 bi-code [1] - 4:8 big [2] - 58:6, 58:7 bigger [1] - 65:24 biggest [1] - 9:4 bill [8] - 16:1, 16:2, 17:13, 17:15, 17:18, 18:1, 18:12, 18:21 bills [8] - 14:18, 15:18, 16:9, 16:11, 17:6, 17:7, 18:19 bit [3] - 6:16, 10:13, 71:10 blanking [1] - 67:12 block [1] - 32:18 blogs [1] - 12:18 Board [2] - 27:9, 28:13 board [1] - 27:22 boilerplate [2] - 55:25 boundaries [1] - 37:22 bounds [1] - 52:6 Bower [1] - 33:15 Brady [1] - 35:17 brand [7] - 9:19, 11:10, 11:12, 12:6, 13:25, 14:2, 14:7 break [5] - 17:24, 25:14, 59:9, 62:18, 63:2 brief [9] - 3:19, 6:20, 6:24, 9:22, 10:3, 10:6, 32:21, 42:5, 66:2 briefing [4] - 2:25, 4:19, 7:20, 28:17 briefly [1] - 32:21 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 76 of 87 PageID #: 535 3 briefs [1] - 24:1 bring [4] - 3:7, 3:15, 3:22, 45:16 brings [1] - 3:16 broad [1] - 9:9 broader [1] - 66:8 broadest [1] - 34:5 broadly [2] - 3:20, 37:19 broke [1] - 63:6 Brooklyn [3] - 1:11, 1:18, 2:2 brought [1] - 69:12 build [1] - 52:10 built [2] - 58:14, 60:11 burden [32] - 8:17, 9:4, 11:4, 12:4, 12:6, 12:7, 13:13, 14:1, 19:22, 24:5, 25:11, 25:15, 26:6, 26:7, 26:18, 26:22, 27:17, 27:19, 30:22, 31:2, 35:25, 43:23, 47:17, 47:18, 53:23, 57:17, 59:5, 61:15, 64:12, 64:18, 71:7, 71:10 burdens [1] - 57:21 burdensome [3] - 30:1, 55:8, 65:24 business [9] - 26:10, 44:1, 51:9, 54:17, 59:19, 59:21, 59:22, 60:10, 62:7 buy [1] - 68:5 buying [1] - 66:3 BY [3] - 1:7, 1:19, 1:24 bypass [12] - 4:7, 6:11, 7:17, 25:21, 25:22, 29:22, 30:18, 39:4, 39:5, 46:25, 59:17, 69:1 bypassing [2] - 8:6, 41:24 C cab [1] - 27:23 Cadman [2] - 1:18, 2:1 CALEA [19] - 21:8, 21:9, 21:17, 21:18, 21:23, 22:3, 23:8, 37:19, 38:14, 38:17, 38:22, 52:5, 52:6, 52:8, 53:5, 53:7, 65:12, 65:18, 65:19 Calea's [2] - 21:13, 23:15 cannot [5] - 21:2, 34:16, 58:17, 58:18, 59:2 capability [5] - 9:10, 21:19, 30:17, 34:11, 34:25 capable [3] - 22:11, 39:5, 40:11 CAPERS [1] - 1:17 capture [1] - 26:12 car [1] - 27:23 card [10] - 31:21, 31:22, 31:23, 31:25, 32:1, 40:18, 40:21, 51:5, 51:6 cards [1] - 27:3 care [1] - 58:6 Care [2] - 18:22, 18:23 carrier [3] - 21:14, 22:7, 23:16 carriers [2] - 21:19, 22:4 carry [1] - 20:16 carrying [3] - 9:12, 21:12, 44:2 carves [1] - 37:21 case [57] - 3:11, 4:11, 4:14, 4:15, 4:16, 5:8, 6:25, 9:6, 9:16, 10:14, 10:16, CMH 10:20, 18:1, 20:10, 25:13, 25:21, 26:23, 27:21, 33:18, 33:20, 35:3, 40:17, 40:18, 40:19, 40:20, 41:3, 41:13, 43:17, 45:21, 48:14, 49:4, 49:8, 49:15, 49:21, 50:1, 50:3, 50:11, 56:3, 62:23, 63:15, 64:10, 67:11, 69:12, 69:14, 69:18, 69:20, 69:23, 70:16, 70:21, 71:1, 71:12, 71:19, 72:3, 72:5, 72:11, 72:12 cases [20] - 15:23, 24:7, 24:20, 24:24, 25:4, 25:7, 25:18, 25:23, 26:13, 27:1, 27:2, 27:4, 27:8, 29:1, 43:6, 51:2, 51:14, 55:24, 69:4, 69:6 cast [1] - 39:20 catch [1] - 41:7 categorical [1] - 28:9 categorically [1] - 48:7 category [2] - 26:16, 26:18 cell [1] - 61:19 cellphone [1] - 41:17 cellphones [3] - 7:4, 7:6, 8:7 cellular [1] - 4:8 cents [1] - 47:22 certain [9] - 33:20, 33:22, 52:9, 57:2, 63:24, 64:25, 65:13, 70:11 cetera [1] - 19:23 challenge [3] - 56:15, 56:19, 60:3 challenged [2] - 55:10, 57:18 challenging [1] - 59:15 chance [3] - 50:13, 50:14, 72:16 change [1] - 48:20 changes [1] - 67:9 characteristics [1] - 26:12 characterize [1] - 68:24 characterized [1] - 28:21 choose [2] - 36:12, 36:23 chosen [1] - 65:17 Circuit [7] - 27:10, 28:12, 35:17, 49:4, 49:7, 49:8, 49:23 circumstance [1] - 71:22 circumvent [2] - 53:18, 53:22 cited [7] - 16:9, 16:20, 26:13, 27:2, 49:5, 51:15, 69:4 cites [6] - 15:19, 27:1, 27:8, 27:20, 49:16, 51:3 citizen [1] - 28:3 citizens [1] - 11:16 civil [1] - 2:9 claim [1] - 67:8 clarify [2] - 32:20, 62:20 classic [1] - 23:16 clean [1] - 31:1 clear [18] - 3:3, 4:15, 10:3, 16:21, 16:22, 17:17, 30:15, 57:3, 57:10, 59:8, 60:13, 60:14, 60:20, 60:22, 60:25, 62:1, 68:7, 69:25 clearest [2] - 27:21, 27:24 clearly [8] - 21:9, 27:18, 35:18, 37:22, 49:21, 55:5, 55:17, 64:5 CLERK [1] - 2:9 OCR RMR CRR close [7] - 3:3, 38:23, 40:18, 43:23, 47:3, 64:3, 71:10 closely [4] - 39:18, 45:16, 46:5, 46:7 code [14] - 3:19, 4:5, 4:8, 4:9, 7:17, 25:14, 30:18, 39:4, 41:15, 42:14, 46:25, 72:7, 72:11 codes [1] - 4:2 codified [1] - 18:1 cognizable [1] - 14:19 coherent [2] - 38:1, 38:8 colleague [1] - 2:22 colleagues [2] - 3:8, 5:1 combination [1] - 29:5 combined [1] - 29:3 command [1] - 28:4 commanding [1] - 5:10 comment [6] - 11:8, 11:9, 11:10, 12:4, 56:20, 59:18 commented [1] - 15:17 commerce [1] - 51:10 committee [3] - 15:20, 16:12, 17:7 common [1] - 41:10 communicated [1] - 62:10 communications [8] - 21:20, 22:5, 22:9, 22:11, 51:22, 61:21, 61:24, 64:25 community [1] - 36:5 companies [3] - 9:21, 16:23, 43:6 companion [2] - 40:22, 41:6 company [29] - 9:4, 9:23, 11:9, 11:11, 13:6, 13:9, 14:3, 14:4, 17:2, 17:24, 31:21, 39:4, 43:4, 43:7, 43:24, 44:15, 44:16, 44:24, 45:1, 45:16, 45:25, 46:6, 47:19, 48:2, 51:5, 51:6, 58:6, 64:8, 69:5 company's [3] - 40:14, 41:11, 45:23 comparable [2] - 41:2, 41:9 compel [2] - 48:4, 48:6 compelled [6] - 43:12, 54:20, 55:15, 57:4, 57:11, 59:10 compelling [1] - 48:7 compensation [2] - 57:25, 58:2 competing [1] - 11:19 complete [1] - 6:10 completely [3] - 47:12, 48:23, 52:6 complex [1] - 51:7 complicated [2] - 30:25, 50:6 complied [2] - 8:11, 10:15 complies [1] - 12:10 comply [6] - 10:21, 10:24, 11:17, 60:12, 61:4, 62:8 complying [5] - 8:24, 12:14, 59:5, 61:6, 61:12 comports [1] - 19:11 comprehensive [5] - 25:1, 38:15, 38:18, 38:24, 65:12 compromise [1] - 58:21 compromising [1] - 54:11 computer [1] - 2:4 computer-aided [1] - 2:4 concede [1] - 43:20 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 77 of 87 PageID #: 536 4 conceived [1] - 69:9 concern [4] - 9:19, 18:24, 38:13, 48:19 concerned [1] - 48:18 concerns [2] - 30:23, 63:1 concession [1] - 57:14 concluded [1] - 73:16 conclusions [1] - 52:7 condone [1] - 11:11 conducting [1] - 39:5 confer [1] - 16:1 conferring [1] - 17:14 confidence [1] - 60:1 confidential [2] - 64:8, 64:14 configured [1] - 63:24 confusingly [1] - 27:20 Congress [51] - 13:5, 13:11, 14:12, 14:15, 15:8, 15:10, 15:15, 15:16, 15:25, 16:10, 16:13, 16:16, 16:25, 17:5, 17:13, 18:4, 18:8, 18:9, 18:19, 18:24, 19:5, 19:14, 19:17, 20:2, 20:4, 20:7, 20:23, 22:4, 36:18, 37:1, 37:14, 38:3, 38:7, 49:14, 51:18, 51:25, 52:2, 52:4, 53:7, 53:10, 53:15, 53:20, 64:23, 65:8, 65:10, 65:11, 65:17, 66:15, 66:23, 66:24 congressional [1] - 37:12 Congressional [17] - 14:17, 14:18, 14:24, 15:3, 16:3, 16:6, 17:18, 18:6, 18:17, 18:18, 21:4, 21:5, 39:6, 49:3, 49:20, 49:25, 65:5 connected [2] - 46:6, 46:7 connection [4] - 40:13, 40:19, 45:21, 71:11 connects [1] - 33:3 conscience [1] - 47:24 conscientious [2] - 48:5, 48:15 conscript [2] - 34:23, 60:23 conscripted [3] - 28:7, 37:23, 59:22 conscripting [2] - 27:22, 43:1 conscription [1] - 51:13 consider [8] - 8:1, 9:17, 20:3, 30:15, 47:11, 47:14, 48:12, 65:17 consideration [1] - 27:17 considered [1] - 60:15 considering [4] - 15:10, 18:19, 22:8, 45:12 consistency [1] - 57:20 consistent [5] - 28:6, 37:11, 38:5, 38:10, 56:24 conspiracy [1] - 5:11 constitutes [1] - 8:16 consult [2] - 36:5, 72:21 consulted [1] - 7:2 consumer [2] - 60:10, 61:3 consumer's [1] - 60:8 consumers [5] - 9:20, 11:8, 59:12, 60:1, 62:11 contacted [1] - 56:6 contained [1] - 4:3 contents [4] - 42:15, 51:22, 61:21, CMH 61:24 context [4] - 39:3, 45:24, 45:25, 47:7 continually [1] - 8:25 continue [3] - 20:24, 37:15, 62:3 Continued [1] - 22:13 continues [1] - 52:14 continuing [1] - 60:12 control [3] - 51:1, 51:4, 51:8 controversy [1] - 55:5 conversation [1] - 13:2 conversations [1] - 7:23 cop [1] - 27:22 copied [1] - 4:10 copy [1] - 3:9 corporate [3] - 8:6, 11:16, 27:3 corporations [1] - 27:3 correct [10] - 5:13, 5:25, 8:18, 10:23, 15:2, 29:14, 32:24, 34:15, 64:1, 65:16 costs [1] - 58:7 counsel [5] - 2:21, 4:14, 8:12, 24:21, 69:1 count [1] - 25:1 counterfactual [1] - 71:7 country [1] - 8:14 couple [3] - 12:12, 30:14, 39:8 course [5] - 4:22, 5:5, 10:12, 51:8, 54:17 COURT [152] - 1:1, 1:7, 2:12, 2:19, 2:23, 5:7, 5:12, 5:16, 5:20, 5:23, 6:12, 6:15, 8:15, 9:22, 10:17, 10:25, 11:6, 11:13, 12:8, 12:20, 12:24, 13:22, 14:2, 14:5, 14:9, 14:20, 15:1, 15:8, 15:21, 17:10, 17:23, 18:11, 18:16, 18:24, 19:13, 20:17, 21:3, 21:11, 21:21, 23:1, 23:18, 23:23, 24:3, 24:22, 25:3, 25:11, 25:24, 27:6, 27:18, 28:14, 28:18, 28:20, 28:25, 29:7, 29:15, 29:23, 30:2, 30:9, 30:24, 31:9, 31:13, 32:5, 32:7, 32:17, 33:2, 33:5, 33:9, 33:13, 34:2, 34:8, 34:16, 34:18, 34:22, 35:5, 35:12, 35:16, 36:2, 36:7, 36:16, 37:17, 39:8, 39:11, 40:7, 40:23, 41:7, 41:12, 41:18, 41:25, 42:4, 42:24, 43:22, 44:11, 44:16, 45:2, 45:14, 46:3, 46:9, 46:12, 46:16, 46:19, 46:22, 47:1, 47:10, 47:15, 48:17, 48:21, 50:12, 50:18, 53:1, 53:6, 53:23, 54:8, 54:24, 55:17, 56:10, 57:12, 57:16, 58:3, 59:4, 59:24, 60:5, 60:14, 61:1, 62:12, 62:15, 62:21, 62:24, 63:7, 63:21, 64:3, 64:12, 64:18, 64:21, 65:22, 67:1, 67:11, 67:17, 68:8, 68:11, 68:15, 68:22, 69:17, 70:20, 71:6, 71:15, 71:18, 72:2, 72:15, 72:23, 73:7, 73:10, 73:12 court [40] - 5:9, 8:10, 9:13, 10:19, 10:20, 10:24, 16:24, 19:19, 21:1, 22:6, 29:16, 34:12, 45:17, 54:20, 55:1, 55:15, 55:16, 55:18, 56:3, 58:23, 59:18, 60:15, 60:20, 61:4, 61:22, 62:4, 65:21, 69:6, 69:10, 69:13, 69:14, 70:10, 70:13, 70:21, 70:22, 70:24, 71:3, 71:24, 72:8 OCR RMR CRR Court [31] - 2:1, 5:5, 7:16, 7:18, 8:3, 8:7, 9:17, 10:15, 11:11, 14:11, 15:4, 15:18, 16:2, 17:2, 17:19, 19:25, 20:3, 20:18, 21:15, 24:1, 27:25, 28:21, 32:24, 36:8, 38:7, 44:12, 44:13, 50:21, 53:3, 69:18 court's [1] - 70:2 Court's [4] - 38:13, 38:25, 42:22, 68:19 Courthouse [1] - 1:10 courts [6] - 19:6, 19:18, 39:12, 55:14, 66:13 covered [1] - 21:9 covers [3] - 52:8, 64:6, 65:4 craft [1] - 57:22 create [2] - 9:10, 10:1 created [2] - 19:17, 40:2 credit [14] - 27:3, 31:21, 31:22, 31:23, 31:25, 32:1, 40:17, 40:21, 40:24, 41:5, 51:5, 51:6 crime [3] - 5:11, 36:6, 42:23 criminal [2] - 40:15, 41:11 cross [2] - 4:14, 40:12 cross-examination [1] - 4:14 crystal [2] - 5:11, 60:20 Cupertino [1] - 32:15 current [4] - 16:9, 18:20, 20:8, 20:9 cursory [1] - 12:18 curtails [1] - 30:8 custodian [1] - 31:25 custody [1] - 50:24 customer [5] - 58:11, 58:13, 58:22, 60:24, 62:7 customers [2] - 12:17, 59:6 customers' [2] - 59:20, 59:21 cut [1] - 62:1 D daily [1] - 19:2 damage [2] - 11:10, 12:5 dare [1] - 34:7 dark [1] - 17:1 darn [1] - 58:6 data [17] - 4:3, 10:9, 12:8, 21:20, 28:23, 28:24, 52:8, 58:11, 58:13, 59:17, 59:20, 59:21, 60:11, 60:12, 61:20, 62:7, 70:18 date [1] - 6:6 dated [1] - 3:12 days [1] - 73:5 DC [1] - 1:23 DEA [6] - 3:18, 6:25, 33:25, 34:3, 35:4 death [4] - 43:11, 44:2, 44:9, 45:16 debate [18] - 10:12, 14:15, 15:16, 16:25, 17:5, 17:6, 20:24, 36:15, 53:10, 53:22, 64:24, 65:1, 65:2, 65:4, 66:8, 66:20, 66:25 debated [1] - 17:8 debates [1] - 16:12 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 78 of 87 PageID #: 537 5 debating [2] - 20:25, 53:8 decide [1] - 65:20 decided [2] - 36:20, 56:4 decides [1] - 43:4 deciding [1] - 15:5 decision [6] - 6:22, 13:3, 16:18, 65:6, 66:12, 73:12 decisively [1] - 15:25 declarant [1] - 63:4 declarations [1] - 25:20 declaratory [1] - 55:4 decrypt [5] - 16:23, 22:5, 22:7, 22:10, 57:1 decrypting [1] - 22:11 decryption [4] - 21:14, 21:24, 23:10 defeat [2] - 41:21, 72:18 defeating [1] - 72:17 defendant [4] - 40:21, 41:3, 41:13, 41:19 defendant's [3] - 4:5, 4:14, 7:5 defined [2] - 31:10, 37:22 definitely [1] - 20:18 definition [3] - 23:15, 37:6 delegating [1] - 20:3 deletes [1] - 42:15 deliberately [2] - 34:5, 44:19 denied [2] - 49:11, 69:13 Department [1] - 3:24 deponent [1] - 34:6 deputy [1] - 3:9 desegregation [1] - 27:12 detail [1] - 24:11 determined [3] - 7:12, 24:20 develop [2] - 45:1, 46:11 developed [1] - 17:5 device [14] - 4:9, 6:8, 17:2, 21:12, 23:17, 24:25, 30:18, 32:24, 33:12, 33:16, 50:24, 51:10, 57:1, 67:24 devices [10] - 5:19, 16:23, 20:16, 21:1, 54:12, 58:18, 58:22, 59:3, 59:17 died [1] - 15:20 difference [3] - 26:19, 26:21, 51:16 different [12] - 21:3, 35:19, 37:16, 44:6, 48:5, 48:7, 50:24, 52:6, 58:12, 60:5, 69:20, 71:5 difficult [1] - 46:4 directions [1] - 58:12 directly [2] - 70:1, 71:1 director [1] - 16:22 disagree [2] - 9:24, 55:8 disagreeing [1] - 49:19 disclose [3] - 29:18, 63:19, 64:8 disclosed [1] - 62:8 discussed [2] - 39:17, 40:16 discussing [2] - 62:12, 64:23 discussion [2] - 12:19, 53:17 disobey [1] - 28:3 dispute [1] - 42:10 distinction [1] - 50:2 CMH DISTRICT [2] - 1:1, 1:1 district [1] - 3:12 District [4] - 35:5, 55:21, 69:4, 69:12 diversion [1] - 23:19 Djibo [5] - 3:14, 3:22, 4:11, 62:23, 72:5 docket [1] - 5:25 doctrine [1] - 65:5 dog [1] - 58:8 dollars [1] - 47:22 done [17] - 9:13, 11:3, 13:14, 14:5, 15:10, 15:15, 24:25, 38:3, 38:4, 40:2, 47:25, 49:10, 54:6, 54:21, 65:12, 66:23 door [2] - 66:11, 66:16 doubt [1] - 33:5 down [3] - 3:9, 66:22, 67:13 draw [4] - 48:1, 52:6, 67:5, 67:22 drawer [1] - 67:25 drawing [1] - 67:19 drug [6] - 43:15, 44:21, 45:1, 46:1, 47:2, 47:6 Drug [1] - 44:25 drugs [4] - 43:4, 43:7, 44:1, 48:2 due [1] - 18:25 during [1] - 9:2 dwindling [1] - 20:22 E easier [1] - 71:11 easily [4] - 18:8, 18:9, 21:6, 34:9 East [2] - 1:18, 2:1 EASTERN [1] - 1:1 easy [1] - 63:18 Education [2] - 27:10, 28:13 effect [1] - 18:23 effective [2] - 19:19, 19:21 effectuate [4] - 19:25, 36:1, 39:12, 69:8 eight [1] - 20:18 either [4] - 25:1, 26:17, 49:18, 59:22 Elbert [1] - 2:17 ELBERT [1] - 1:20 electronic [2] - 6:7, 37:20 element [3] - 39:17, 43:24, 45:18 elements [1] - 45:19 email [2] - 6:1, 8:21 emphasize [1] - 50:20 employee [1] - 9:5 enabled [2] - 42:14, 42:16 encompass [1] - 53:9 encrypted [1] - 22:5 encryption [7] - 13:7, 21:13, 22:1, 22:7, 37:21, 40:4, 41:21 end [4] - 10:20, 30:12, 35:24, 42:6 ended [1] - 70:22 enforcement [14] - 12:15, 40:20, 47:20, 52:2, 52:11, 54:10, 56:7, 56:23, 59:2, 59:17, 59:23, 64:25, 65:3, 65:14 engage [2] - 20:4, 21:14 OCR RMR CRR ensured [1] - 19:18 entangled [1] - 68:1 enter [2] - 4:9, 7:1 enterprise [1] - 40:15 entire [3] - 35:23, 53:22, 65:2 entirety [1] - 50:8 entity [1] - 11:21 entry [1] - 4:8 escape [1] - 41:1 especially [2] - 48:25, 56:11 ESQ [2] - 1:24, 1:25 essence [1] - 22:8 essential [1] - 69:6 essentially [4] - 15:14, 32:18, 51:11, 67:12 established [1] - 8:23 establishes [2] - 30:9, 45:21 estimates [1] - 8:9 estoppel [1] - 11:2 ET [1] - 1:7 et [1] - 19:23 event [2] - 3:25, 29:4 evidence [7] - 5:11, 6:7, 12:9, 13:13, 14:1, 36:19, 42:23 evolve [1] - 61:19 evolves [1] - 61:25 ex [2] - 54:22, 54:25 exact [4] - 8:12, 16:10, 45:3, 52:1 exactly [8] - 10:16, 11:5, 28:4, 29:21, 57:6, 57:23, 69:13, 72:17 examination [1] - 4:14 example [11] - 8:5, 15:25, 18:21, 24:21, 25:14, 27:21, 27:24, 31:20, 37:19, 39:14, 51:4 examples [1] - 18:18 exception [2] - 23:10, 55:20 excuse [1] - 36:9 execute [3] - 7:10, 29:12, 43:9 executed [4] - 6:6, 42:13, 42:23, 44:8 executing [2] - 7:7, 8:2 Execution [1] - 2:11 execution [5] - 6:7, 38:25, 42:17, 43:8, 45:16 EXECUTION [1] - 1:5 executions [1] - 44:20 executive [1] - 16:22 exempted [1] - 21:24 exhausted [1] - 48:23 exhaustive [1] - 50:6 Exhibit [1] - 5:24 exist [1] - 63:16 existing [2] - 29:23, 43:14 exists [1] - 70:3 expanded [1] - 4:12 expands [1] - 3:19 expansive [1] - 43:21 expect [5] - 7:22, 9:20, 11:8, 11:16, 34:9 expedite [1] - 23:6 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 79 of 87 PageID #: 538 6 expedited [1] - 6:21 expense [1] - 57:21 expert [4] - 4:12, 50:23, 59:1, 63:5 expired [3] - 5:12, 6:3, 6:16 explain [1] - 32:1 Explain [1] - 59:24 explained [2] - 4:12, 57:18 explains [1] - 54:8 explanation [1] - 72:18 explicitly [4] - 16:1, 36:25, 38:7, 39:22 explore [2] - 7:9, 10:13 expressed [1] - 39:6 expressly [1] - 14:13 extend [1] - 68:7 extending [3] - 40:23, 41:4, 41:5 extensive [2] - 25:22, 50:5 extent [3] - 25:7, 38:4, 47:16 extracting [2] - 28:23, 28:24 extractions [1] - 24:25 F F2D [1] - 27:10 face [1] - 36:19 facetiously [1] - 66:7 facilities [10] - 26:11, 29:3, 29:6, 32:13, 32:15, 40:14, 45:23, 46:1, 50:25, 51:3 facility [3] - 27:13, 48:6, 71:12 fact [20] - 8:15, 16:8, 16:19, 17:5, 17:7, 20:13, 32:23, 36:6, 38:18, 40:16, 43:5, 43:22, 53:25, 56:5, 56:7, 56:13, 56:18, 57:9, 57:14, 58:14 factors [4] - 14:6, 43:18, 45:12 factual [1] - 71:21 failed [4] - 3:18, 21:22, 42:16, 72:13 fair [8] - 6:23, 15:9, 17:19, 23:22, 36:21, 37:1, 48:19, 68:23 fairly [1] - 69:25 fall [3] - 26:16, 26:18 falls [1] - 26:22 familiar [2] - 18:25, 43:21 fanciful [2] - 43:2, 43:3 far [9] - 14:17, 15:15, 15:21, 15:24, 17:11, 24:16, 48:11, 64:23, 68:7 Faraday [1] - 32:16 FBI [7] - 3:18, 6:25, 7:3, 16:21, 33:24, 34:3, 35:3 feasible [1] - 30:20 feature [4] - 4:2, 41:15, 42:15, 72:12 features [1] - 46:1 federal [16] - 5:9, 9:13, 10:11, 19:17, 19:18, 19:19, 29:19, 32:3, 36:4, 40:20, 42:13, 55:16, 70:24, 71:12, 71:14 Federal [3] - 38:24, 42:22, 46:11 few [9] - 14:18, 15:16, 15:17, 20:14, 20:15, 24:19, 36:17, 55:19 fewer [1] - 44:17 fight [2] - 61:5, 61:12 CMH fighting [1] - 47:3 figure [2] - 26:7, 65:8 filing [1] - 36:14 fill [3] - 38:4, 53:12, 65:21 filling [1] - 65:9 fills [1] - 15:6 fine [4] - 20:10, 47:12, 49:22, 60:17 finely [1] - 35:16 finish [1] - 6:13 first [21] - 2:24, 5:18, 7:1, 7:15, 8:21, 12:13, 21:8, 30:15, 39:16, 39:24, 43:24, 44:3, 45:18, 45:19, 47:5, 47:6, 54:15, 57:17, 66:19, 67:2, 68:19 five [1] - 3:23 floor [1] - 16:12 focus [2] - 10:3, 51:15 folks [1] - 2:24 follow [6] - 8:2, 27:23, 33:17, 50:11, 59:11, 72:8 followed [3] - 9:6, 72:4, 72:17 following [1] - 58:10 follows [1] - 11:12 Food [1] - 44:25 force [3] - 17:23, 37:13, 58:24 forced [5] - 58:25, 59:1, 59:2, 62:3, 63:23 forcing [2] - 21:13, 64:7 foreclosed [1] - 53:24 forensic [6] - 4:1, 4:12, 53:14, 59:1, 63:5, 63:12 forensics [1] - 51:13 forget [1] - 3:25 forgive [1] - 10:17 forgotten [1] - 17:25 form [2] - 10:8, 29:16 forma [1] - 56:12 forth [1] - 25:19 forums [1] - 12:19 forward [4] - 39:25, 40:25, 41:2, 58:17 foster [1] - 54:10 foundational [1] - 19:11 four [2] - 15:18 frames [1] - 40:13 frankly [1] - 28:7 frequency [1] - 57:9 front [2] - 37:2, 57:24 frontier [1] - 53:13 frustrate [1] - 44:19 frustrated [1] - 51:25 fugitive [4] - 40:24, 40:25, 41:5 fully [1] - 40:16 fundamentally [1] - 36:13 futile [1] - 56:2 future [2] - 20:25, 63:16 G gambit [1] - 27:2 game [4] - 15:9, 17:19, 36:21, 37:1 OCR RMR CRR gap [4] - 14:14, 15:5, 36:14, 53:11 gaps [1] - 38:4 Gene [1] - 2:1 given [5] - 17:4, 20:5, 32:24, 52:10, 56:14 glad [1] - 69:11 gorilla [1] - 43:6 governed [1] - 39:3 Government [26] - 1:17, 24:16, 25:13, 29:19, 30:20, 32:4, 33:22, 34:3, 34:6, 34:10, 34:16, 35:1, 35:19, 35:20, 35:23, 36:10, 43:8, 45:5, 46:11, 46:12, 46:19, 46:23, 51:3, 51:11, 51:18, 51:22 government [55] - 2:14, 3:10, 3:16, 3:19, 3:20, 3:23, 6:19, 6:24, 7:8, 7:14, 7:15, 7:24, 8:3, 8:14, 9:15, 10:21, 11:22, 12:20, 12:25, 13:3, 13:10, 13:20, 14:13, 14:16, 15:22, 16:17, 16:24, 17:23, 19:23, 53:13, 53:15, 53:19, 53:21, 54:2, 60:23, 61:21, 61:22, 62:17, 63:18, 63:19, 64:16, 65:25, 66:6, 66:14, 66:15, 67:4, 67:6, 67:13, 68:1, 68:6, 69:25, 70:9, 70:17, 71:25 Government's [1] - 50:24 government's [4] - 4:12, 8:2, 9:6, 61:9 Grand [6] - 29:20, 30:11, 30:14, 30:16, 30:21, 31:25 grant [3] - 17:19, 61:9, 70:4 granted [3] - 52:4, 66:21, 68:6 grants [1] - 18:10 great [1] - 73:10 greater [2] - 51:20, 51:21 grown [3] - 9:3, 14:3, 14:4 guess [1] - 37:17 guidance [2] - 8:22, 15:24 guidelines [2] - 7:25, 9:1 guys [1] - 73:8 H habeas [2] - 71:1, 71:2 Hall [3] - 40:17, 40:23, 45:23 halves [1] - 26:2 hand [3] - 3:9, 25:18, 36:17 handle [1] - 3:2 handled [1] - 72:5 happy [8] - 4:19, 5:5, 10:7, 23:25, 48:12, 50:11, 50:16, 73:1 hard [7] - 19:7, 44:5, 45:10, 47:10, 54:4, 61:14, 67:5 Haute [1] - 43:10 head [1] - 60:8 headquarters [1] - 32:15 hear [5] - 3:6, 4:20, 50:13, 50:15, 50:16 heard [4] - 5:1, 15:17, 63:11, 63:14 hearing [2] - 3:11, 72:9 hearings [2] - 16:19, 16:21 heart [1] - 14:21 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 80 of 87 PageID #: 539 7 held [1] - 43:13 help [7] - 9:25, 11:14, 12:3, 21:6, 43:9, 47:20, 54:9 helped [1] - 3:2 helpful [3] - 3:1, 10:1, 72:25 helping [1] - 41:3 helps [1] - 12:10 herring [1] - 42:7 hesitate [1] - 44:6 higher [2] - 10:19, 30:22 historically [1] - 70:9 history [1] - 54:1 home [2] - 5:19, 7:5 Homeland [2] - 3:24 honest [1] - 44:4 Honor [45] - 2:15, 2:20, 5:3, 6:23, 10:6, 10:23, 11:5, 11:8, 12:5, 13:20, 14:8, 14:25, 16:5, 16:8, 16:20, 18:7, 20:21, 21:10, 23:13, 24:15, 29:14, 30:1, 30:13, 31:17, 32:12, 32:20, 34:7, 36:4, 39:10, 44:4, 46:21, 47:13, 48:13, 50:16, 50:19, 58:10, 64:20, 68:13, 68:17, 69:11, 69:22, 70:25, 71:20, 72:4, 73:11 HONORABLE [1] - 1:14 hope [3] - 20:17, 67:17 hours [1] - 25:22 House [2] - 18:21, 22:2 HSI [3] - 3:24, 3:25, 4:4 hurt [3] - 13:14, 13:25, 14:3 hypo [1] - 47:4 hypothetical [7] - 17:21, 35:10, 46:22, 47:13, 48:10, 60:8, 60:9 I idea [2] - 12:25, 28:7 identified [2] - 11:20, 24:17 identify [1] - 11:22 ignore [1] - 36:7 III [5] - 21:20, 22:10, 50:3, 50:4, 67:8 illegal [1] - 45:24 immediate [1] - 57:21 impact [1] - 11:12 imperil [4] - 59:11, 60:18, 61:3, 61:14 imperils [1] - 61:11 implemented [1] - 67:9 implicate [1] - 25:8 implicated [1] - 25:5 implicates [1] - 59:5 implied [2] - 38:22, 39:6 import [1] - 43:13 importance [1] - 20:23 important [8] - 5:8, 7:15, 11:25, 14:21, 51:16, 56:21, 58:13, 71:21 impose [1] - 25:16 impractical [1] - 37:10 improper [2] - 10:9, 10:10 IN [1] - 1:5 inaction [5] - 15:3, 37:12, 49:3, 49:25, CMH 65:5 INC [1] - 1:4 Inc [2] - 2:10, 55:21 include [1] - 51:23 included [2] - 51:20, 51:23 includes [1] - 38:10 including [2] - 4:13, 37:15 independent [2] - 33:23, 63:13 indicate [1] - 56:13 indicated [1] - 9:15 indicating [1] - 55:14 indication [2] - 51:18, 63:11 individuals [1] - 27:4 indulged [1] - 48:25 industry [1] - 37:20 infer [1] - 38:2 inference [1] - 38:20 inflammatory [2] - 47:14, 48:10 influences [1] - 18:25 information [30] - 23:7, 23:11, 23:15, 25:8, 26:9, 27:6, 27:7, 27:13, 28:23, 28:25, 29:2, 29:6, 29:7, 29:11, 29:13, 29:18, 31:14, 41:6, 48:6, 53:2, 64:5, 68:21, 68:25, 69:2, 69:7, 69:9, 70:11, 70:13, 70:15, 72:6 informative [1] - 2:25 informed [1] - 33:21 informing [1] - 8:25 infringe [1] - 25:16 initial [2] - 8:9, 8:13 initiate [1] - 6:7 initiates [1] - 72:13 injection [2] - 43:4, 44:15 inserted [1] - 39:19 inside [1] - 53:1 insight [1] - 11:4 insisted [1] - 7:25 instance [2] - 24:17, 71:4 instances [1] - 61:10 instead [1] - 47:3 instruct [1] - 70:14 instruction [1] - 64:2 Intel [1] - 34:10 intelligence [1] - 36:5 intend [1] - 3:8 intended [4] - 32:21, 45:20, 51:18, 65:11 intending [1] - 38:3 intent [3] - 19:8, 45:15, 51:25 intentionally [2] - 48:1, 48:9 intercept [1] - 21:19 intercepted [1] - 22:9 interest [1] - 11:19 interesting [2] - 24:15, 35:9 interests [5] - 11:23, 25:5, 25:9, 25:17, 55:18 internal [1] - 32:2 internet [1] - 33:3 interpretation [1] - 38:21 OCR RMR CRR interpretive [1] - 36:24 interrupting [1] - 10:18 interstitial [1] - 65:9 intervening [1] - 18:14 introduce [1] - 25:10 introductory [1] - 5:4 intuitive [1] - 24:9 investigate [1] - 36:5 investigation [7] - 12:11, 33:24, 39:23, 40:1, 40:3, 40:8, 46:24 invitation [1] - 61:7 invited [3] - 55:16, 55:18, 59:18 invoke [2] - 9:8, 57:16 involve [3] - 25:21, 32:16, 51:3 involved [5] - 6:25, 33:19, 58:18, 67:21, 67:23 involves [2] - 27:9, 40:20 involving [1] - 30:1 IOS [14] - 4:17, 20:14, 20:16, 20:25, 33:19, 33:23, 33:25, 58:15, 58:16, 63:1, 63:2, 63:3, 63:6 iPhone [5] - 3:17, 4:3, 4:6, 4:16, 63:6 ironic [1] - 59:13 irrelevant [1] - 13:21 issuance [2] - 6:6, 69:25 issue [29] - 3:17, 3:21, 6:21, 7:5, 9:25, 12:3, 12:22, 17:1, 20:12, 20:15, 20:22, 20:25, 25:4, 25:7, 25:24, 29:20, 34:8, 35:8, 36:20, 37:18, 38:17, 38:23, 39:7, 40:12, 53:23, 56:4, 56:14, 64:15, 65:21 ISSUED [1] - 1:7 issued [7] - 5:9, 5:15, 6:5, 9:12, 19:19, 44:10 issues [7] - 3:3, 10:13, 14:21, 19:20, 20:6, 57:15, 69:6 issuing [1] - 31:20 items [1] - 73:2 iterations [1] - 38:18 itself [6] - 13:1, 14:1, 25:5, 50:4, 58:19, 60:12 J jail [1] - 60:18 JAMES [1] - 1:14 Jeffrey [1] - 2:22 JEFFREY [1] - 1:25 job [1] - 45:4 Johnson [1] - 3:11 joined [2] - 2:17, 2:21 joke [1] - 35:14 JUDGE [1] - 1:15 Judge [4] - 3:11, 69:17, 69:22, 73:15 judges [1] - 56:9 judgment [1] - 55:4 Judiciary [1] - 19:10 judiciary [1] - 20:4 July [4] - 3:12, 6:5, 6:19, 7:6 jumping [1] - 48:25 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 81 of 87 PageID #: 540 8 jurisdiction [2] - 70:3 jurisdictional [3] - 55:6, 70:4, 70:7 Jury [6] - 29:20, 30:11, 30:14, 30:16, 30:21, 31:25 jury [1] - 44:10 Justice [3] - 43:5, 69:18, 69:21 justification [1] - 64:10 K Kabrawala [1] - 2:17 KABRAWALA [1] - 1:20 keep [4] - 26:7, 31:1, 55:3, 68:8 keeps [1] - 26:6 key [1] - 38:16 kill [1] - 48:3 kin [1] - 40:11 kind [6] - 12:8, 21:12, 24:10, 28:4, 54:9, 56:14 kinds [2] - 28:8, 37:14 knowledge [2] - 20:7, 33:19 KOMATIREDDY [110] - 1:19, 2:15, 5:3, 5:8, 5:14, 5:18, 5:22, 6:5, 6:14, 6:23, 8:18, 10:5, 11:5, 11:7, 12:4, 12:12, 12:22, 13:19, 13:23, 14:4, 14:8, 14:11, 14:25, 15:7, 15:14, 16:5, 17:21, 18:7, 18:15, 18:17, 19:9, 19:16, 20:21, 21:10, 21:17, 22:2, 23:13, 23:22, 23:25, 24:15, 26:21, 27:7, 28:13, 28:16, 28:19, 28:21, 29:5, 29:14, 29:19, 29:25, 30:6, 30:13, 31:6, 31:12, 31:17, 32:6, 32:12, 33:7, 33:11, 33:17, 34:7, 34:15, 34:17, 34:20, 35:2, 35:9, 35:15, 35:24, 36:3, 36:13, 37:9, 38:13, 39:10, 40:5, 40:10, 41:4, 41:10, 41:14, 41:23, 42:2, 42:11, 43:16, 44:4, 44:14, 44:23, 45:7, 45:20, 46:4, 46:10, 46:15, 46:17, 46:21, 46:24, 47:9, 47:13, 48:12, 48:18, 50:1, 50:16, 68:17, 68:23, 70:6, 70:25, 71:9, 71:17, 71:20, 72:4, 72:20, 73:5, 73:15 Komatireddy [7] - 2:16, 4:25, 25:24, 52:12, 62:12, 63:1, 64:1 Komatireddy's [1] - 64:22 L labor [1] - 69:9 lack [1] - 49:20 LANDIS [1] - 1:25 Landis [1] - 2:22 language [16] - 7:24, 8:4, 17:14, 17:22, 34:5, 56:21, 56:22, 57:2, 57:8, 57:14, 57:16, 57:19, 57:22, 57:24, 59:9, 69:25 larger [1] - 18:1 last [10] - 12:13, 15:22, 17:10, 39:11, 43:4, 43:7, 44:16, 49:2, 70:20 LAUREN [1] - 1:20 Lauren [1] - 2:17 CMH Law [1] - 43:21 law [48] - 11:12, 11:17, 12:10, 12:15, 14:14, 15:7, 15:8, 16:8, 18:9, 20:8, 20:9, 26:23, 30:4, 35:17, 37:3, 37:4, 38:11, 38:12, 38:17, 39:7, 40:20, 41:1, 43:20, 44:23, 44:25, 45:22, 47:20, 48:20, 52:1, 52:11, 53:11, 53:12, 54:10, 56:7, 56:23, 59:2, 59:10, 59:11, 59:17, 59:22, 60:23, 61:18, 61:19, 61:25, 64:24, 65:3, 65:14 lawful [8] - 10:15, 43:11, 44:2, 45:17, 60:13, 60:14, 60:16, 62:8 lawyers [1] - 69:20 leading [1] - 66:21 learned [1] - 4:18 least [6] - 8:10, 12:2, 18:21, 39:21, 71:13, 72:6 leaves [1] - 38:19 leaving [1] - 10:18 left [2] - 17:9, 39:7 legal [15] - 7:24, 9:1, 9:8, 9:25, 10:4, 10:8, 12:3, 18:20, 24:2, 37:13, 54:15, 62:16, 64:9, 70:17 legally [5] - 14:19, 53:24, 63:21, 63:22, 64:3 legislates [1] - 20:7 legislation [10] - 12:21, 13:21, 15:11, 17:3, 17:16, 38:5, 49:10, 49:20, 66:11, 66:16 legislative [3] - 19:5, 38:15, 38:16 length [2] - 9:22, 40:18 lesser [1] - 51:23 lethal [1] - 43:4 letter [4] - 3:10, 3:12, 3:23, 73:2 letters [1] - 73:4 letting [1] - 29:6 level [4] - 15:3, 24:11, 56:11, 62:16 licences [1] - 41:16 license [2] - 42:6, 42:7 lies [1] - 61:9 light [1] - 59:14 likelihood [1] - 71:23 limit [2] - 27:15, 28:9 limited [1] - 56:1 limits [1] - 15:13 line [3] - 67:5, 67:19, 68:3 lines [1] - 31:1 list [1] - 15:23 litigation [1] - 32:8 location [1] - 41:6 lock [4] - 41:15, 41:24, 42:14, 65:18 locked [4] - 8:7, 12:15, 67:22, 67:25 locksmith [1] - 43:2 logs [1] - 51:4 long-standing [1] - 8:6 look [21] - 11:15, 13:8, 13:13, 13:16, 16:19, 27:18, 28:14, 30:25, 34:9, 35:16, 36:18, 36:22, 43:19, 43:24, 44:11, 56:10, 57:16, 65:11, 65:24, 69:3, 71:21 OCR RMR CRR looking [4] - 23:14, 37:10, 38:14, 49:9 loop [1] - 64:3 lose [2] - 39:9, 60:1 losing [1] - 26:7 loudly [1] - 15:4 M magistrate [1] - 56:11 MAGISTRATE [1] - 1:15 magistrates [1] - 55:13 main [1] - 68:19 majority [1] - 24:6 managed [1] - 25:9 manner [2] - 8:11, 45:1 manual [1] - 64:2 manufacture [2] - 21:11, 43:14 manufacturers [1] - 23:17 MARC [1] - 1:24 Marc [1] - 2:21 market [1] - 13:15 marketing [1] - 47:21 Marshal [1] - 70:23 marshals [1] - 72:1 Marshals [5] - 30:3, 30:7, 31:4, 70:21, 71:13 materials [1] - 3:22 matter [7] - 13:12, 20:4, 32:23, 38:20, 47:21, 47:24, 73:16 matters [1] - 6:16 MC [1] - 1:8 mean [9] - 30:17, 34:25, 39:19, 45:24, 46:12, 58:5, 59:8, 64:13, 70:8 meaning [3] - 23:7, 49:19, 49:24 meaningless [1] - 14:24 means [2] - 62:13, 63:15 mechanical [1] - 2:4 mechanism [3] - 62:7, 63:2, 63:18 members [1] - 15:16 mentioned [1] - 51:2 mere [1] - 61:20 meth [1] - 5:11 method [1] - 63:19 middle [1] - 58:19 might [3] - 32:7, 46:12, 62:13 mind [9] - 3:4, 17:4, 19:24, 23:2, 24:22, 38:1, 49:21, 64:19, 66:1 minimal [1] - 9:5 minute [2] - 36:9, 60:3 minutes [1] - 36:17 Miscellaneous [1] - 2:10 mischaracterizing [1] - 15:1 missing [1] - 50:9 mistaken [3] - 4:17, 23:9, 57:24 mode [1] - 6:9 modifying [1] - 67:7 moment [3] - 23:9, 47:9, 68:10 monitoring [1] - 69:6 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 82 of 87 PageID #: 541 9 monopoly [1] - 43:25 moot [1] - 23:1 morning [4] - 2:12, 2:15, 2:20, 2:23 most [5] - 5:8, 14:21, 51:16, 64:8, 64:14 motion [2] - 21:20, 61:9 move [1] - 14:9 moving [1] - 20:2 MR [43] - 2:20, 10:23, 24:23, 25:6, 25:15, 32:20, 33:4, 50:19, 53:3, 53:7, 54:7, 54:13, 55:10, 56:5, 56:20, 57:13, 58:1, 58:9, 59:13, 60:2, 60:9, 60:19, 61:17, 62:14, 62:19, 62:22, 62:25, 63:10, 63:22, 64:7, 64:13, 64:20, 64:22, 66:19, 67:2, 67:16, 67:19, 68:10, 68:13, 69:11, 69:24, 73:9, 73:11 MS [109] - 2:15, 5:3, 5:8, 5:14, 5:18, 5:22, 6:5, 6:14, 6:23, 8:18, 10:5, 11:5, 11:7, 12:4, 12:12, 12:22, 13:19, 13:23, 14:4, 14:8, 14:11, 14:25, 15:7, 15:14, 16:5, 17:21, 18:7, 18:15, 18:17, 19:9, 19:16, 20:21, 21:10, 21:17, 22:2, 23:13, 23:22, 23:25, 24:15, 26:21, 27:7, 28:13, 28:16, 28:19, 28:21, 29:5, 29:14, 29:19, 29:25, 30:6, 30:13, 31:6, 31:12, 31:17, 32:6, 32:12, 33:7, 33:11, 33:17, 34:7, 34:15, 34:17, 34:20, 35:2, 35:9, 35:15, 35:24, 36:3, 36:13, 37:9, 38:13, 39:10, 40:5, 40:10, 41:4, 41:10, 41:14, 41:23, 42:2, 42:11, 43:16, 44:4, 44:14, 44:23, 45:7, 45:20, 46:4, 46:10, 46:15, 46:17, 46:21, 46:24, 47:9, 47:13, 48:12, 48:18, 50:1, 50:16, 68:17, 68:23, 70:6, 70:25, 71:9, 71:17, 71:20, 72:4, 72:20, 73:5, 73:15 multiple [1] - 56:9 must [3] - 10:20, 60:15, 70:3 N narrow [2] - 64:24, 70:17 narrower [1] - 66:2 narrowly [1] - 36:18 nature [4] - 25:4, 26:23, 27:15, 27:16 navigate [1] - 34:9 necessarily [3] - 27:12, 47:23, 56:13 necessary [4] - 19:25, 36:1, 36:8, 70:2 necessity [2] - 36:2, 36:3 need [11] - 6:21, 23:6, 30:25, 32:5, 32:7, 32:10, 34:18, 50:1, 53:3, 54:2, 55:17 needed [1] - 19:20 needn't [1] - 19:1 needs [3] - 23:4, 53:10, 53:20 negative [1] - 11:12 negotiating [1] - 25:20 never [9] - 8:11, 15:19, 52:2, 54:19, 56:18, 58:1, 58:12, 59:20, 65:10 nevertheless [1] - 4:5 CMH new [10] - 9:8, 9:9, 53:13, 59:3, 66:4, 66:21, 66:22, 67:3, 68:5 NEW [1] - 1:1 New [27] - 1:11, 2:2, 26:4, 26:19, 26:24, 27:1, 27:5, 27:8, 27:20, 27:24, 39:17, 39:21, 40:13, 43:18, 43:24, 45:18, 45:22, 47:6, 47:17, 49:5, 49:16, 51:17, 51:20, 54:16, 67:22, 69:3, 71:8 newer [1] - 66:5 next [3] - 18:12, 22:13, 52:14 Nickerson [2] - 69:17, 69:22 nine [1] - 20:19 Ninth [4] - 49:4, 49:6, 49:8, 49:23 nobody [1] - 47:2 normal [2] - 51:8, 54:17 note [5] - 5:23, 7:4, 7:15, 21:22, 48:14 note-taking [1] - 21:22 noted [1] - 6:24 notes [1] - 24:4 nothing [4] - 18:19, 40:7, 55:25, 67:24 notice [1] - 33:17 noting [1] - 8:20 notion [1] - 11:11 number [6] - 4:25, 8:12, 8:13, 18:18, 20:5, 24:22 NW [1] - 1:23 NY [1] - 1:18 O o'clock [1] - 1:12 Oakland [1] - 55:23 objected [1] - 8:11 objection [3] - 48:5, 48:15, 48:16 obligation [8] - 21:25, 22:10, 35:17, 36:4, 52:10, 55:2, 59:10, 60:17 obligations [1] - 21:25 observation [1] - 14:12 obsolete [1] - 20:15 obtain [4] - 4:3, 4:6, 70:11, 70:18 obtained [1] - 16:24 obtaining [3] - 16:17, 69:8, 70:14 obvious [2] - 50:9, 68:3 obviously [2] - 18:24, 64:6 October [2] - 1:12, 6:19 odds [1] - 19:6 OF [3] - 1:1, 1:6, 1:14 offensive [1] - 54:18 offered [1] - 56:22 office [3] - 35:6, 35:12, 35:19 old [1] - 59:3 once [3] - 4:9, 7:12, 62:2 one [61] - 3:7, 3:17, 4:25, 5:15, 5:16, 5:20, 7:19, 7:21, 11:7, 14:10, 14:21, 15:11, 16:20, 17:10, 17:16, 17:24, 21:3, 24:5, 26:3, 26:15, 27:8, 29:3, 34:12, 36:17, 36:23, 37:1, 37:2, 38:16, 38:19, 39:14, 40:16, 41:14, 42:25, 43:3, 44:8, 44:18, 45:11, 49:2, 54:25, 55:20, 55:22, OCR RMR CRR 56:20, 56:22, 57:4, 59:4, 59:9, 61:18, 62:16, 65:17, 66:2, 66:7, 67:3, 67:23, 68:10, 69:3, 69:18, 69:19, 70:10, 70:20, 73:4 ongoing [3] - 8:13, 40:15, 55:5 onwards [1] - 26:24 open [1] - 34:11 operates [2] - 20:9, 42:12 operating [7] - 20:10, 33:21, 40:2, 41:15, 42:22, 58:14, 58:16 opinion [1] - 15:19 opportunity [2] - 4:22, 10:13 opposed [5] - 28:7, 31:23, 31:24, 35:17, 72:1 opposite [2] - 28:4, 52:1 oral [1] - 2:9 order [38] - 7:9, 7:18, 8:1, 8:3, 8:7, 10:20, 10:24, 16:24, 17:2, 21:1, 27:9, 27:11, 29:17, 31:20, 35:8, 36:5, 44:7, 44:12, 44:13, 45:12, 45:17, 52:2, 54:20, 55:11, 57:3, 59:5, 61:4, 61:5, 61:12, 61:22, 64:5, 64:6, 64:11, 67:8, 69:8, 70:1, 71:24 ORDER [1] - 1:4 Order [1] - 2:10 ordered [4] - 22:6, 25:12, 59:25, 68:2 ordering [2] - 21:15, 62:17 orders [26] - 8:10, 10:15, 12:14, 12:16, 16:18, 19:18, 19:19, 19:25, 54:25, 55:13, 55:14, 55:19, 55:25, 56:6, 56:12, 56:19, 56:23, 56:24, 57:15, 60:4, 60:13, 62:8, 66:18, 69:5, 69:7, 70:9 ORENSTEIN [1] - 1:14 organized [1] - 36:10 original [1] - 49:13 orthodoxy [1] - 61:23 otherwise [4] - 17:18, 22:12, 44:22, 50:9 ourselves [1] - 36:10 outset [1] - 50:2 outside [3] - 52:6, 52:13, 53:5 outstripped [1] - 19:3 overall [2] - 38:5, 49:9 override [1] - 4:2 owes [1] - 41:16 own [11] - 7:2, 20:5, 21:22, 26:10, 33:19, 42:3, 46:11, 46:13, 46:23, 51:12, 59:22 owner [1] - 41:16 owns [1] - 42:12 P page [3] - 3:23, 22:13, 52:14 pains [1] - 59:8 parallels [1] - 48:1 parents [2] - 27:9, 27:11 parse [1] - 16:4 part [12] - 3:16, 16:20, 18:1, 26:6, FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 83 of 87 PageID #: 542 10 27:18, 27:19, 40:14, 46:4, 47:18, 57:5, 69:9, 71:14 parte [2] - 54:22, 54:25 particular [11] - 20:12, 20:22, 27:11, 33:19, 33:23, 38:19, 39:3, 46:25, 69:8, 71:22, 71:24 particularly [1] - 45:9 parties [6] - 27:1, 37:22, 38:25, 39:13, 42:8, 63:12 partly [1] - 49:14 parts [1] - 19:10 party [7] - 7:11, 26:24, 29:2, 34:23, 39:15, 51:8, 70:14 party's [1] - 51:4 pass [16] - 3:19, 4:2, 4:5, 7:17, 16:8, 25:14, 30:18, 37:14, 39:4, 41:15, 42:13, 42:14, 46:25, 71:7, 72:7, 72:11 passed [13] - 16:11, 17:8, 17:16, 18:21, 19:9, 19:13, 19:14, 38:17, 44:3, 49:14, 53:17, 65:8 passes [1] - 18:2 passing [1] - 15:8 password [4] - 6:11, 13:6, 17:25, 21:13 past [8] - 11:2, 13:6, 16:22, 17:7, 24:25, 55:5, 59:15, 61:15 path [3] - 31:4, 31:6, 59:24 patient [1] - 50:18 patriotic [1] - 10:2 patriotism [3] - 9:23, 10:5, 11:9 pause [1] - 68:12 Pause [1] - 47:8 paying [1] - 60:17 pejoratively [1] - 39:20 pen [2] - 51:24 pending [1] - 32:19 Pennsylvania [4] - 30:2, 30:6, 31:3, 70:21 people [8] - 12:9, 16:4, 16:7, 16:14, 25:1, 25:7, 47:19, 48:3 per [1] - 8:19 perceived [2] - 11:10, 56:16 percent [1] - 58:18 perception [2] - 48:19, 48:20 perform [5] - 51:12, 54:21, 57:4, 58:18, 65:19 performing [2] - 51:24 perhaps [4] - 24:20, 29:17, 38:20, 46:14 period [1] - 8:23 permit [2] - 31:7, 45:11 person [4] - 40:21, 40:24, 41:8, 63:5 personal [1] - 33:19 personally [2] - 63:6, 72:8 personnel [1] - 71:3 perspective [1] - 25:6 phone [21] - 3:21, 5:10, 7:1, 7:13, 29:8, 29:18, 31:14, 32:11, 33:25, 42:3, 42:15, 46:25, 51:5, 62:18, 63:9, 63:13, 63:15, CMH 66:5, 67:13, 68:5, 69:5 phones [7] - 7:7, 12:15, 17:24, 59:9, 66:4, 66:6, 67:3 phrased [1] - 38:9 picture [2] - 58:7, 65:25 place [5] - 23:20, 26:7, 49:1, 50:5, 53:15 placing [1] - 6:9 plainly [1] - 9:4 plans [1] - 61:8 play [1] - 56:7 Plaza [2] - 1:18, 2:1 plenty [1] - 56:11 point [26] - 11:7, 13:19, 13:21, 13:23, 14:10, 19:17, 20:21, 42:11, 43:25, 44:17, 46:18, 47:21, 47:22, 57:8, 58:5, 60:25, 61:14, 63:25, 64:14, 65:7, 66:9, 66:19, 67:2, 67:19, 71:2, 71:4 points [5] - 23:24, 50:20, 52:12, 68:14, 68:18 policy [1] - 44:19 pops [1] - 50:2 posed [1] - 17:12 posited [1] - 62:4 positing [1] - 47:1 position [15] - 9:17, 9:18, 11:22, 11:24, 12:5, 24:12, 39:22, 39:25, 45:3, 53:4, 58:17, 58:20, 59:16, 62:9, 62:11 possession [3] - 4:1, 51:1, 51:7 possibility [3] - 10:19, 34:10, 40:3 possible [5] - 36:15, 38:18, 40:25, 47:3, 72:11 possibly [1] - 42:16 potential [1] - 44:9 power [6] - 51:19, 51:21, 51:23, 53:21 powers [3] - 19:7, 19:12, 20:1 practical [4] - 36:14, 37:10, 37:11, 37:13 practically [1] - 36:22 practice [10] - 8:6, 8:25, 11:2, 12:14, 12:16, 16:7, 16:17, 16:25, 17:8, 72:21 precedent [2] - 31:19, 51:14 preliminary [1] - 17:6 prepare [1] - 25:7 presence [1] - 50:6 pressed [1] - 11:21 pretend [1] - 72:17 pretty [2] - 15:23, 58:6 prevent [2] - 21:15, 60:11 preventing [1] - 42:12 primarily [1] - 7:1 principles [4] - 37:4, 37:18, 37:25, 38:11 prioritization [1] - 20:5 prioritize [1] - 20:11 priority [1] - 73:4 prisoner [3] - 70:23, 71:12, 71:25 privacy [5] - 9:21, 53:19, 54:11, 58:13, 58:21 OCR RMR CRR private [3] - 11:21, 28:3, 47:22 pro [1] - 56:12 problem [1] - 47:10 problems [2] - 65:10, 67:4 procedure [4] - 8:23, 9:7, 29:23, 30:4 proceeding [2] - 54:22 Proceedings [1] - 2:4 proceedings [1] - 54:25 process [12] - 7:6, 7:23, 7:25, 8:20, 9:1, 25:22, 28:23, 29:16, 60:7, 62:17, 66:24, 69:1 processing [2] - 8:24, 9:3 produce [1] - 31:24 produced [1] - 2:4 product [3] - 67:10, 67:21, 67:23 proffer [1] - 69:24 prohibit [3] - 16:7, 17:8, 17:22 prohibited [2] - 37:1, 38:7 prohibiting [2] - 15:9, 16:8 prohibition [2] - 15:12, 38:22 promote [1] - 12:11 prong [5] - 26:5, 36:2, 36:3, 47:6, 67:22 prongs [1] - 71:8 propose [1] - 59:9 proposed [6] - 14:18, 15:18, 16:9, 17:7, 19:4 proposition [1] - 3:17 proprietary [2] - 25:9, 25:16 prosecuting [1] - 35:3 prosecution [2] - 34:21, 34:22 prosecutors [5] - 8:14, 24:16, 24:18, 35:3, 36:4 prospect [1] - 25:12 prospective [1] - 22:9 prospectively [2] - 41:3, 41:8 protect [1] - 9:21 provide [14] - 9:16, 13:6, 15:23, 21:25, 28:16, 53:14, 58:24, 62:1, 64:1, 65:13, 69:15, 70:11, 70:12, 72:6 provided [7] - 2:25, 7:24, 8:22, 9:14, 22:7, 57:19, 69:16 provider [5] - 21:14, 21:25, 22:10, 54:17, 54:18 providers [7] - 52:9, 53:10, 53:14, 63:12, 65:2, 65:13 provides [3] - 27:16, 57:15, 60:21 providing [9] - 12:14, 41:13, 43:7, 50:23, 50:25, 52:9, 54:8, 64:24, 67:25 provision [5] - 18:1, 21:13, 21:23, 22:2, 71:2 public [8] - 8:25, 12:16, 13:25, 23:16, 44:19, 48:19, 66:20, 66:25 publicly [1] - 55:23 published [1] - 12:13 publishing [1] - 9:1 Puerto [2] - 69:4, 69:12 purpose [1] - 45:25 purposefully [1] - 47:15 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 84 of 87 PageID #: 543 11 purposes [4] - 26:10, 26:19, 34:13, 43:23 pushing [1] - 53:12 put [4] - 4:20, 24:12, 51:10, 61:14 puts [3] - 19:5, 37:21, 58:16 putting [1] - 11:13 Q qualify [1] - 23:11 query [1] - 8:13 questioning [1] - 9:23 questions [13] - 3:5, 4:25, 5:5, 21:8, 23:23, 24:1, 26:15, 27:5, 39:8, 45:10, 47:10, 48:23, 56:25 quick [1] - 3:1 quickly [1] - 73:13 quite [2] - 66:7, 66:9 quo [3] - 16:15, 17:9, 37:15 quoted [1] - 8:21 R raise [1] - 6:18 rather [2] - 72:18, 73:4 Re [2] - 2:10, 69:5 re [1] - 43:13 re-import [1] - 43:13 reached [3] - 7:14, 7:15, 66:8 read [5] - 16:13, 37:7, 56:18, 69:23, 72:16 reading [4] - 36:25, 49:18, 50:7, 69:13 readings [1] - 69:20 realistic [1] - 25:12 realize [1] - 20:8 really [18] - 3:2, 8:17, 9:25, 10:3, 13:14, 21:5, 27:2, 35:7, 36:19, 45:4, 47:4, 48:21, 49:5, 49:17, 55:7, 60:5, 65:24, 72:25 realtime [2] - 21:19, 22:8 reason [11] - 3:22, 9:18, 13:1, 16:6, 20:11, 23:8, 33:5, 37:12, 40:12, 44:5, 72:12 reasonable [9] - 7:9, 12:17, 16:16, 18:23, 19:21, 20:9, 20:23, 35:4, 38:20 reasonably [1] - 16:13 reasons [6] - 12:25, 16:14, 36:11, 37:14, 56:22, 57:19 received [2] - 8:10, 55:11 receiving [2] - 55:13 recent [2] - 14:15, 43:6 recently [2] - 19:14, 66:9 record [5] - 8:21, 17:17, 32:4, 62:20, 68:18 recorded [1] - 2:4 records [13] - 4:6, 4:10, 27:3, 31:21, 31:23, 31:24, 32:1, 32:5, 32:8, 40:18, 40:21, 50:25, 51:3 CMH recounted [1] - 6:20 red [1] - 42:7 referred [2] - 15:20, 43:5 refund [1] - 49:11 refused [1] - 14:15 regard [1] - 62:22 regime [1] - 18:3 register [2] - 51:24, 51:25 regression [1] - 14:5 regularly [1] - 55:13 regulates [1] - 37:19 regulating [1] - 42:8 rehearse [1] - 19:1 reject [1] - 15:25 rejected [1] - 16:3 related [5] - 21:8, 29:15, 39:18, 57:1, 65:23 relation [1] - 71:13 relationship [2] - 43:23, 59:6 relatively [1] - 50:6 release [1] - 43:14 relevance [1] - 42:9 relevant [3] - 42:11, 43:19, 44:25 relief [3] - 7:16, 35:20, 49:6 relieve [1] - 55:2 rely [2] - 24:1, 66:13 remain [1] - 16:15 remarks [1] - 5:4 remember [1] - 5:9 remind [1] - 65:22 reminded [2] - 39:11, 69:17 remote [5] - 32:16, 32:17, 32:22, 32:23, 42:18 renewed [1] - 6:17 reopen [1] - 66:15 repeal [1] - 18:22 repeatedly [1] - 56:6 Reporter [1] - 2:1 reports [1] - 22:3 represent [2] - 40:10, 72:7 representation [11] - 33:6, 33:7, 34:2, 34:4, 34:6, 34:13, 34:18, 34:20, 35:7, 35:20, 35:22 represented [2] - 42:18, 69:1 representing [1] - 45:4 represents [1] - 9:17 reputation [1] - 9:5 reputational [2] - 12:7, 14:1 request [12] - 6:17, 8:2, 9:11, 32:18, 32:22, 32:23, 39:4, 49:12, 54:3, 72:1, 73:5 requested [3] - 8:1, 38:19, 70:1 requesting [6] - 10:16, 14:14, 14:16, 16:10, 17:22 requests [3] - 8:24, 9:3, 32:16 require [11] - 13:5, 13:11, 44:24, 45:1, 49:15, 53:14, 57:23, 57:25, 68:20, 69:10, 70:22 required [20] - 7:25, 24:10, 24:11, OCR RMR CRR 24:18, 24:24, 26:25, 53:5, 56:15, 56:25, 57:6, 57:7, 58:1, 61:24, 62:9, 65:3, 65:13, 65:19, 69:2, 70:23, 71:3 requirement [1] - 4:8 requires [5] - 21:18, 21:21, 45:12, 63:24, 64:16 Requiring [1] - 2:10 REQUIRING [1] - 1:4 requiring [8] - 8:7, 8:10, 10:15, 27:9, 27:11, 38:25, 39:14, 50:3 research [1] - 13:15 resolve [2] - 9:25, 69:21 resolved [2] - 24:8, 24:20 resources [1] - 9:5 respect [1] - 37:20 respects [1] - 37:21 respond [1] - 49:22 response [2] - 49:15, 68:16 responsibility [2] - 10:7, 22:5 responsible [2] - 8:6, 35:18 responsive [1] - 48:24 restricts [1] - 23:16 result [4] - 10:20, 15:11, 54:23, 66:23 retain [1] - 21:19 return [1] - 43:17 reveal [2] - 24:13, 25:14 reversal [2] - 9:18, 9:19 review [3] - 50:1, 50:11, 64:23 reviewed [1] - 45:22 revised [1] - 7:20 revisiting [1] - 19:2 Rico [2] - 69:4, 69:12 rid [1] - 32:17 rights [2] - 9:24, 56:16 ring [1] - 67:14 road [1] - 66:22 ROBERT [1] - 1:17 robust [1] - 66:20 role [1] - 65:2 room [2] - 32:16, 33:2 routine [2] - 9:7, 9:11 routinely [1] - 8:23 Rudolph [1] - 2:1 Rule [4] - 30:9, 30:10, 69:16, 70:7 ruled [1] - 69:14 run [1] - 27:2 running [4] - 4:16, 27:22, 63:6 S safe [1] - 43:1 safety [1] - 9:21 salient [1] - 20:25 SARITHA [1] - 1:19 Saritha [1] - 2:16 satisfied [1] - 45:17 satisfy [2] - 45:18, 47:5 saw [1] - 57:3 scenario [3] - 17:12, 47:1, 47:7 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 85 of 87 PageID #: 544 12 schedule [3] - 3:1, 7:20, 73:1 scheduling [1] - 23:5 scheme [9] - 38:16, 38:24, 39:12, 50:7, 50:8, 50:10, 65:9, 65:12 school [1] - 27:12 scope [3] - 52:13, 53:1, 53:5 se [1] - 8:19 search [25] - 5:10, 5:12, 5:14, 5:15, 5:18, 6:8, 6:10, 7:5, 7:7, 7:10, 9:12, 10:11, 12:16, 12:18, 16:24, 19:20, 19:21, 29:12, 39:1, 42:17, 54:23, 70:18 Search [1] - 2:11 SEARCH [1] - 1:6 searching [1] - 42:25 second [9] - 23:1, 26:3, 30:21, 51:16, 57:19, 66:7, 66:19, 70:13, 72:2 Second [1] - 35:17 secret [4] - 9:8, 24:13, 30:22, 64:15 secrets [1] - 64:9 Security [1] - 3:24 security [3] - 4:2, 58:13, 58:21 see [6] - 20:21, 26:19, 26:21, 55:24, 61:1, 61:11 seeing [1] - 20:13 seek [6] - 9:9, 12:21, 13:5, 17:14, 55:4, 56:15 seeking [8] - 12:21, 18:22, 35:19, 52:2, 66:10, 67:5, 67:20, 68:6 seeks [2] - 10:21, 15:22 seem [2] - 61:3, 68:3 seized [1] - 7:4 sell [1] - 66:6 Senate [1] - 22:3 send [2] - 27:11, 71:25 sense [6] - 24:9, 36:11, 37:24, 48:10, 65:25, 66:2 sensitive [1] - 23:5 sentence [5] - 43:11, 44:2, 44:9, 44:12, 45:16 separate [6] - 12:22, 18:12, 25:24, 70:4, 70:6, 70:17 separation [3] - 19:7, 19:11, 20:1 September [1] - 3:13 seriously [1] - 10:7 servers [3] - 29:12, 63:25, 69:2 service [12] - 11:21, 23:7, 23:11, 23:15, 28:7, 39:14, 41:12, 48:4, 48:8, 53:2, 60:24, 63:12 Service [1] - 70:23 services [19] - 22:1, 24:12, 40:14, 41:11, 41:12, 41:14, 50:23, 51:13, 52:10, 53:9, 53:14, 54:21, 57:4, 57:6, 58:19, 59:1, 65:20, 67:25, 68:21 set [3] - 51:17, 67:12, 73:1 setting [1] - 20:5 settled [2] - 56:8 seven [1] - 12:13 several [4] - 14:12, 25:21, 44:25, 55:3 share [1] - 12:1 CMH short [4] - 15:8, 15:14, 41:20, 41:23 shown [1] - 14:15 shows [1] - 13:14 side [3] - 34:10, 73:2, 73:4 sides [4] - 3:5, 4:22, 23:3, 72:25 siege [1] - 58:12 signed [1] - 56:12 significant [1] - 25:19 signing [1] - 25:20 silence [12] - 14:24, 16:3, 17:19, 18:6, 18:17, 18:18, 21:4, 21:5, 45:2, 45:3, 49:20 silent [1] - 36:19 simple [2] - 9:11, 18:20 simply [6] - 3:20, 16:7, 26:24, 27:15, 40:1, 44:8 simultaneous [1] - 73:3 site [1] - 61:20 sitting [1] - 67:24 situation [5] - 21:18, 28:22, 52:1, 54:4, 71:24 situations [2] - 26:25, 71:22 skip [1] - 24:6 skipped [1] - 50:12 slice [2] - 35:16, 56:1 slightly [1] - 21:3 slipped [1] - 64:19 slowly [1] - 20:2 so-called [1] - 17:1 societal [2] - 65:2, 66:8 software [11] - 4:7, 4:15, 4:16, 21:12, 29:22, 42:3, 42:4, 42:12, 42:21, 67:7 sold [2] - 41:19, 41:21 solved [1] - 68:4 someone [1] - 46:6 somewhat [7] - 3:1, 27:20, 56:8, 59:13, 61:23, 65:23, 66:9 son [1] - 27:11 soon [1] - 10:3 sorry [6] - 28:11, 41:23, 44:11, 54:24, 60:16, 67:17 sort [14] - 8:17, 11:1, 21:12, 23:8, 26:2, 28:4, 28:9, 39:20, 48:25, 49:9, 53:24, 59:24, 66:2 sorts [3] - 12:14, 26:25, 66:22 sought [1] - 13:21 sounds [1] - 31:15 Southern [2] - 35:5, 55:20 speaking [1] - 3:20 speaks [1] - 15:4 specialized [1] - 4:7 specific [9] - 7:24, 23:14, 24:17, 30:4, 32:14, 33:21, 39:6, 43:22, 50:9 specifically [2] - 21:24, 31:10 specify [2] - 26:23, 27:15 speculation [1] - 63:3 spirit [1] - 37:24 spot [1] - 4:20 square [1] - 49:24 OCR RMR CRR squarely [1] - 19:5 squares [1] - 19:8 stake [1] - 55:18 stand [3] - 10:9, 40:8, 66:10 standardized [1] - 57:8 standing [2] - 8:6, 71:15 stands [4] - 3:25, 9:23, 42:21, 42:22 start [2] - 5:2, 15:16 started [3] - 3:6, 6:12, 17:13 starting [1] - 4:24 state [5] - 32:24, 49:10, 55:15, 71:3, 71:12 statements [2] - 14:17, 14:18 states [4] - 10:6, 18:10, 22:4 STATES [2] - 1:1, 1:15 States [10] - 1:10, 1:17, 2:16, 2:18, 3:13, 34:25, 40:17, 45:22, 49:6, 71:13 statue [1] - 53:8 status [3] - 16:15, 17:9, 37:15 statute [19] - 23:12, 28:2, 30:8, 30:9, 36:14, 37:2, 37:7, 38:2, 38:8, 38:10, 38:21, 49:13, 50:4, 50:5, 65:15, 71:1, 71:2, 71:4, 71:6 statutes [2] - 19:2, 37:15 statutory [11] - 15:12, 18:3, 23:14, 31:4, 31:6, 37:5, 38:20, 38:24, 50:6, 50:8, 50:10 stays [1] - 67:21 stenography [1] - 2:4 step [2] - 44:3, 44:8 steps [5] - 55:8, 61:5, 61:11, 61:16, 68:2 still [12] - 16:3, 17:16, 17:18, 18:2, 18:6, 18:14, 25:19, 30:19, 35:6, 42:14, 57:18, 60:16 stipulations [1] - 25:20 stock [1] - 43:14 stop [2] - 43:5, 67:6 stops [2] - 67:5, 68:3 store [1] - 32:14 stored [1] - 4:6 stream [1] - 51:10 Street [1] - 1:23 strip [1] - 17:15 stripped [1] - 18:2 struck [2] - 42:6, 65:19 struggling [1] - 25:25 stunning [1] - 9:18 subject [4] - 4:3, 4:6, 16:12, 22:6 submission [1] - 23:4 submit [2] - 4:22, 55:16 subpoena [10] - 29:16, 29:20, 29:21, 31:18, 31:22, 31:25, 61:20, 61:22, 62:16, 64:4 subset [1] - 52:3 successfully [1] - 63:8 sufficient [3] - 12:25, 32:3, 60:23 sufficiently [4] - 46:5, 67:21, 67:23, 68:1 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 86 of 87 PageID #: 545 13 suggest [1] - 32:21 suggested [1] - 56:2 suggesting [1] - 49:9 suggestion [1] - 10:6 suggestions [1] - 43:1 supplement [2] - 28:19, 68:18 supplemental [1] - 23:4 support [1] - 12:18 suppose [2] - 3:20, 71:23 supposed [1] - 69:21 Supreme [1] - 69:18 surely [1] - 51:23 surprised [2] - 10:14, 34:11 surprising [2] - 9:22, 28:2 surprisingly [1] - 13:3 surveillance [3] - 9:9, 37:20, 51:6 survey [2] - 8:13, 24:16 suspect [1] - 32:15 system [13] - 32:2, 32:3, 32:4, 33:21, 33:25, 40:2, 41:15, 58:14, 60:11, 63:1, 63:24, 64:16, 71:14 systems [2] - 58:15, 58:16 T table [1] - 2:22 talks [2] - 40:18, 72:16 tap [4] - 49:13, 50:4, 51:22 tapes [2] - 27:4, 51:6 target [1] - 33:25 task [1] - 37:23 team [2] - 34:21, 34:22 technical [8] - 30:17, 37:18, 62:16, 68:25, 69:7, 70:19, 72:18 technically [2] - 63:21, 63:23 technicians [1] - 4:2 technologies [1] - 33:22 technology [9] - 4:1, 7:2, 19:3, 32:12, 32:13, 33:10, 35:6, 46:13, 72:10 Tel [16] - 26:4, 26:19, 27:20, 27:25, 39:21, 40:13, 43:24, 45:18, 45:22, 47:6, 47:17, 49:5, 49:16, 54:16, 67:22, 71:8 telecom [4] - 21:14, 21:25, 49:12, 49:15 telecommunications [3] - 21:18, 22:4, 23:16 Telephone [8] - 26:24, 27:1, 27:8, 39:17, 43:18, 51:17, 51:20, 69:3 telephone [1] - 4:8 template [1] - 9:7 ten [5] - 7:4, 7:6, 38:18, 42:15, 72:13 tendentious [1] - 11:13 terms [16] - 9:4, 12:6, 15:10, 25:11, 25:25, 30:22, 35:12, 37:7, 37:9, 39:12, 39:20, 40:11, 42:8, 43:22, 57:17, 72:20 Terre [1] - 43:9 test [4] - 26:5, 47:5, 47:6, 71:7 testifies [1] - 33:16 testify [9] - 24:8, 24:10, 24:18, 24:24, CMH 25:2, 25:8, 25:19, 25:23, 31:23 testifying [1] - 63:5 testimony [15] - 3:11, 3:12, 4:11, 15:17, 16:20, 16:21, 25:4, 25:10, 32:2, 32:8, 33:12, 63:4, 72:15, 72:16 text [3] - 37:5, 37:8, 38:8 textbook [1] - 8:5 THE [154] - 1:5, 1:7, 1:14, 2:9, 2:12, 2:19, 2:23, 5:7, 5:12, 5:16, 5:20, 5:23, 6:12, 6:15, 8:15, 9:22, 10:17, 10:25, 11:6, 11:13, 12:8, 12:20, 12:24, 13:22, 14:2, 14:5, 14:9, 14:20, 15:1, 15:8, 15:21, 17:10, 17:23, 18:11, 18:16, 18:24, 19:13, 20:17, 21:3, 21:11, 21:21, 23:1, 23:18, 23:23, 24:3, 24:22, 25:3, 25:11, 25:24, 27:6, 27:18, 28:14, 28:18, 28:20, 28:25, 29:7, 29:15, 29:23, 30:2, 30:9, 30:24, 31:9, 31:13, 32:5, 32:7, 32:17, 33:2, 33:5, 33:9, 33:13, 34:2, 34:8, 34:16, 34:18, 34:22, 35:5, 35:12, 35:16, 36:2, 36:7, 36:16, 37:17, 39:8, 39:11, 40:7, 40:23, 41:7, 41:12, 41:18, 41:25, 42:4, 42:24, 43:22, 44:11, 44:16, 45:2, 45:14, 46:3, 46:9, 46:12, 46:16, 46:19, 46:22, 47:1, 47:10, 47:15, 48:17, 48:21, 50:12, 50:18, 53:1, 53:6, 53:23, 54:8, 54:24, 55:17, 56:10, 57:12, 57:16, 58:3, 59:4, 59:24, 60:5, 60:14, 61:1, 62:12, 62:15, 62:21, 62:24, 63:7, 63:21, 64:3, 64:12, 64:18, 64:21, 65:22, 67:1, 67:11, 67:17, 68:8, 68:11, 68:15, 68:22, 69:17, 70:20, 71:6, 71:15, 71:18, 72:2, 72:15, 72:23, 73:7, 73:10, 73:12 their's [1] - 26:11 theoretically [2] - 46:19, 46:22 theory [2] - 31:17, 31:22 therefore [2] - 20:2, 43:12 therein [1] - 4:3 they've [1] - 56:3 thin [1] - 15:23 thinking [2] - 12:2, 13:8 thinks [1] - 68:1 third [13] - 7:11, 26:24, 27:1, 29:1, 34:23, 37:22, 38:25, 39:13, 39:14, 51:4, 51:8, 63:11, 70:14 third-party [1] - 7:11 thoughts [1] - 4:19 thread [1] - 41:10 three [6] - 16:9, 26:5, 26:12, 41:14, 45:12, 45:19 throughout [1] - 8:22 thwart [6] - 39:22, 39:25, 40:3, 42:16, 45:15, 45:21 thwarting [3] - 43:11, 44:2, 45:17 timeframe [1] - 9:2 Title [5] - 21:20, 22:10, 50:3, 50:4, 67:8 title [1] - 65:14 TO [1] - 1:5 today [3] - 9:17, 53:20, 58:23 took [4] - 7:7, 7:8, 16:2, 33:1 OCR RMR CRR tool [1] - 35:4 top [1] - 20:12 topic [1] - 65:4 topics [1] - 65:4 total [1] - 42:7 touched [1] - 50:21 tough [3] - 45:8, 45:9, 48:9 traction [1] - 16:13 trade [4] - 24:13, 30:22, 64:8, 64:14 transactions [1] - 51:5 TRANSCRIPT [1] - 1:14 transcript [2] - 2:4, 52:14 transcription [1] - 2:4 transfer [3] - 71:3, 71:11, 71:24 transitory [1] - 66:18 transmissions [1] - 52:8 transport [2] - 70:23, 71:16 trial [3] - 7:17, 25:13, 29:20 tried [2] - 3:18, 56:18 trouble [1] - 61:1 troubled [1] - 53:25 true [2] - 42:19, 71:20 trust [7] - 59:5, 59:11, 60:18, 60:24, 61:3, 61:11, 61:14 try [2] - 44:19, 56:3 trying [13] - 26:7, 26:20, 36:16, 38:6, 40:20, 41:7, 45:6, 47:2, 47:5, 48:1, 56:17, 67:12, 72:11 turn [1] - 59:16 turnaround [1] - 7:22 turned [1] - 72:19 turning [2] - 6:8, 40:4 twenty [1] - 24:24 two [19] - 5:14, 6:6, 6:24, 7:19, 9:15, 21:8, 26:2, 26:15, 37:4, 45:10, 50:20, 54:14, 57:6, 61:17, 65:18, 66:1, 68:18, 70:10, 73:5 type [4] - 51:13, 54:22, 64:10, 67:4 types [7] - 52:9, 52:10, 53:13, 57:15, 64:25, 65:13, 69:9 U U.S [1] - 35:5 unable [3] - 3:21, 6:10, 7:2 unanimous [1] - 17:15 unanimously [1] - 18:2 under [29] - 4:13, 17:20, 18:14, 21:8, 26:4, 26:13, 26:22, 27:17, 28:8, 30:2, 30:4, 30:6, 30:10, 31:3, 31:17, 31:22, 35:8, 38:8, 43:12, 43:18, 43:22, 53:5, 53:21, 54:16, 58:12, 66:18, 67:22, 69:14, 70:1 undermine [3] - 18:20, 18:23, 60:24 underscore [1] - 50:22 undue [1] - 20:3 unfortunate [1] - 9:20 unfortunately [1] - 64:19 UNITED [2] - 1:1, 1:15 FCRR Case 1:15-mc-01902-JO Document 19 Filed 10/27/15 Page 87 of 87 PageID #: 546 14 United [10] - 1:10, 1:17, 2:16, 2:18, 3:13, 34:25, 40:17, 45:22, 49:6, 71:13 unknown [1] - 13:3 unlawful [1] - 28:3 unless [1] - 22:6 unlock [4] - 3:18, 3:21, 4:8, 51:13 unlocked [1] - 4:10 unlocking [1] - 67:6 unnecessary [1] - 19:22 unrealistic [2] - 35:10, 35:13 unreasonable [2] - 19:24, 26:18 unwillingly [1] - 59:25 up [10] - 20:6, 33:17, 50:11, 57:2, 67:17, 69:12, 70:22, 72:4, 72:8, 73:2 update [2] - 20:18, 67:13 updated [1] - 19:14 updating [1] - 9:1 US [2] - 1:21, 11:12 usage [1] - 37:4 usages [3] - 37:18, 37:25, 38:12 useful [1] - 13:2 user [3] - 17:25, 29:6, 42:6 users' [1] - 54:11 uses [2] - 30:18, 32:13 utilities [1] - 23:17 V valid [4] - 9:12, 10:10, 12:16, 39:1 value [4] - 11:25, 12:1, 12:2, 14:6 values [1] - 13:2 variation [1] - 17:12 variety [4] - 53:9, 58:12, 65:4 various [2] - 27:2, 73:2 vast [1] - 24:6 vector [1] - 58:21 verification [1] - 63:14 Verizon [2] - 21:8, 21:15 version [3] - 4:15, 4:17, 19:14 versus [8] - 27:10, 28:13, 30:2, 30:6, 31:3, 40:17, 45:22, 70:21 video [1] - 27:3 view [2] - 37:7, 65:16 views [4] - 55:16, 56:8, 59:19 vindicate [1] - 56:15 voluntarily [1] - 54:20 voluntary [1] - 57:5 vote [3] - 16:2, 18:8, 18:13 voted [4] - 15:19, 15:25, 16:4, 17:9 voting [1] - 18:4 W warfare [1] - 43:6 Warrant [1] - 2:11 warrant [30] - 5:10, 5:12, 5:15, 5:18, 6:3, 6:5, 6:8, 6:17, 7:5, 7:7, 7:10, 9:12, 10:11, 16:24, 19:20, 19:21, 29:12, 29:17, 31:14, 36:1, 39:1, 40:1, 42:13, 42:17, 42:23, 44:7, 44:13, 54:23, 61:23, 70:18 WARRANT [1] - 1:6 warrants [2] - 5:14, 39:12 Washington [1] - 1:23 ways [2] - 36:16, 54:14 Wednesday [3] - 73:6, 73:7, 73:9 week [2] - 18:13, 18:14 weeks [3] - 6:6, 7:19, 9:15 weight [2] - 55:12, 61:15 welcome [5] - 2:19, 10:12, 23:4, 23:21 whole [1] - 65:7 wider [2] - 53:9 win [1] - 56:3 wipe [5] - 32:17, 32:22, 32:23, 42:18, 72:13 wire [5] - 32:16, 49:13, 50:3, 50:4, 51:21 wiretap [2] - 21:20, 22:10 wiretaps [1] - 22:6 withdraw [1] - 44:20 witness [2] - 29:21, 31:22 wonder [1] - 37:6 wonderful [3] - 11:15, 45:4, 72:25 wondering [1] - 28:6 words [5] - 4:4, 37:4, 60:7, 66:17, 71:18 works [3] - 4:7, 4:13, 56:10 world [1] - 9:4 worried [1] - 66:12 worse [1] - 31:2 worth [1] - 8:20 wrapping [1] - 31:1 writes [1] - 3:24 writing [1] - 54:3 Writs [60] - 15:5, 15:13, 15:22, 16:17, 17:20, 18:14, 19:4, 19:8, 19:9, 20:24, 26:13, 26:17, 26:22, 27:14, 28:1, 28:5, 28:9, 29:17, 30:3, 30:7, 31:16, 31:18, 31:20, 34:14, 35:8, 36:14, 36:17, 36:21, 37:10, 39:3, 43:13, 43:19, 44:21, 45:11, 48:4, 48:11, 49:11, 49:18, 51:14, 53:12, 53:16, 53:22, 57:14, 57:17, 58:24, 60:21, 62:1, 64:4, 64:6, 65:7, 66:13, 66:18, 68:20, 69:7, 69:14, 69:15, 70:1, 70:8, 70:12 Y year [3] - 3:13, 5:13, 6:3 years [5] - 9:14, 12:13, 20:15, 48:15 YORK [1] - 1:1 York [30] - 1:11, 2:2, 26:4, 26:19, 26:24, 27:1, 27:5, 27:8, 27:10, 27:20, 27:25, 28:13, 28:14, 39:17, 39:21, 40:13, 43:18, 43:24, 45:18, 45:22, 47:6, 47:17, 49:5, 49:16, 51:17, 51:20, 54:16, 67:22, 69:3, 71:8 Z ZwillGen [1] - 1:22 ZWILLINGER [44] - 1:24, 2:20, 10:23, 24:23, 25:6, 25:15, 32:20, 33:4, 50:19, 53:3, 53:7, 54:7, 54:13, 55:10, 56:5, 56:20, 57:13, 58:1, 58:9, 59:13, 60:2, 60:9, 60:19, 61:17, 62:14, 62:19, 62:22, 62:25, 63:10, 63:22, 64:7, 64:13, 64:20, 64:22, 66:19, 67:2, 67:16, 67:19, 68:10, 68:13, 69:11, 69:24, 73:9, 73:11 Zwillinger [1] - 2:21 X wait [1] - 36:9 waited [1] - 6:19 waiver [3] - 8:17, 8:19, 11:2 walk [2] - 29:21, 30:11 wants [4] - 5:1, 25:13, 53:13, 65:25 CMH XXX [1] - 55:21 OCR RMR CRR FCRR