Case 1:15-mc-01902-JO Document 27 Filed 02/17/16 Page 1 of 3 PageID #: 570 1900 M Street, NW, Ste. 250, Washington, D.C. 20036 marc@zwillgen.com   Marc J. Zwillinger (202) 706-5202 (phone) (202) 706-5298 (fax) February 17, 2016 VIA ELECTRONIC FILING – UNDER SEAL The Honorable James Orenstein United States Magistrate Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201 Re: In re Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant Issued by the Court, No. 15-MC-1902 Dear Judge Orenstein: I write in response to this Court’s February 16, 2016 order (the “Order”) requesting that Apple provide certain additional details regarding other requests it has received during the pendency of this matter that are of a similar nature to the one at issue in the instant case. As recently as yesterday, Apple was served with an order by the United States Attorney’s Office for the Central District of California. (See Exhibit A.) The government obtained that order on the basis of an ex parte application pursuant to the All Writs Act (see Exhibit B), regarding which Apple had no prior opportunity to be heard (despite having specifically requested from the government in advance the opportunity to do so). The attached order directs Apple to perform even more burdensome and involved engineering than that sought in the case currently before this Court— i.e., to create and load Apple-signed software onto the subject iPhone device to circumvent the security and anti-tampering features of the device in order to enable the government to hack the passcode to obtain access to the protected data contained therein. (See Exhibit A.) As invited by the California court’s order, Apple intends to promptly seek relief. But, as this recent case makes apparent, the issue remains quite pressing. In addition to the aforementioned order, Apple has received other All Writs Act orders during the pendency of this case, certain details of which are set forth in the table below. In particular, for each such request Apple provides the following categories of information requested in the Order: Case 1:15-mc-01902-JO Document 27 Filed 02/17/16 Page 2 of 3 PageID #: 571     (1) the jurisdiction in which the request was made, (2) the type of device at issue in the request, (3) the version of iOS being used on that device, and (4) Apple’s response to the request and/or its current status, as applicable. Date Received Jurisdiction Device Type iOS Version Status 10/8/2015 Southern District of New York iPhone 4S 7.0.4 Apple objected (12/9/2015) 10/30/2015 Southern District of New York iPhone 5S 7.1 Apple objected (12/9/2015) 11/16/2015 Eastern District of New York iPhone 6 Plus 8.1.2 Apple objected (12/9/2015) iPhone 6 8.1.2 11/18/2015 Northern District of Illinois iPhone 5S 7.1.1 12/4/2015 iPhone 6 8.0 (or higher) Apple objected (12/9/2015) iPhone 3 4.2.1 iPhone 3 6.1.6 Northern District of California 12/9/2015 Northern District of Illinois iPhone 5S 7.0.5 Apple requested copy of underlying Motion but has not received it yet (2/1/2016) 1/13/2016 Southern District of California N/A (device ID not yet provided) N/A (device ID not yet provided, but the requesting agent advised device is preiOS 8) Apple was advised by the requesting agent that she is seeking a new warrant. Apple has not yet received this warrant. 2/2/2016 Northern District of Illinois iPad 2 Wifi 7.0.6 Apple objected (2/5/2016) 2/9/2016 District of Massachusetts iPhone 6 Plus 9.1 Apple objected (2/11/2016) 2    Apple objected (12/9/2015) Case 1:15-mc-01902-JO Document 27 Filed 02/17/16 Page 3 of 3 PageID #: 572     With respect to the other categories of information sought in the Order (specifically, categories 4-6), Apple responds that following its objection or other response to each request there has not been any final disposition thereof to Apple’s knowledge, and Apple has not agreed to perform any services on the devices to which those requests are directed.1 Sincerely, /s/ Marc J. Zwillinger Marc J. Zwillinger cc: All Counsel of Record (via ECF)                                                              1 Apple further notes that shortly preceding the pendency of the instant case, it received additional All Writs Act orders—specifically, two from the Southern District of Ohio (both on September 24, 2015) and Northern District of Illinois (on October 6, 2015). Apple objected to each of these orders, and to Apple’s knowledge there have been no further developments since such objections were lodged. 3    Case 1:15-mc-01902-JO Document 27-1 Filed 02/17/16 Page 1 of 4 PageID 573 Exhibit A U1 l: 5 (50139533Case 1:15-mc-01902-JO Document 27-1 Filed 02/17/16 Page 2 Of 4 PageID 574 Comm FILED I CLERKI U.S. DISTRICT FE BZDIB ESNTRAL DISTRECT OI- CALJF EILEEN M. DECKER United States Attorney PATRICIA A. DONAHUE Assistant United States Attorney Chief, National Security Division TRACY L. WILKISON (California Bar No. Assistant United States Attorney Chief, Cyber and Intellectual Property Crimes Section ALLEN W. CHIU (California Bar No. 240516) Assistant United States Attorney Terrorism and Export Crimes Section 1500 United States Courthouse 312 North Spring Street Los Angeles, California 90012 184948) Telephone: (213) 894-0622/2435 c3 Eggsim?le: (213) 894-8601 ?3 E?adl: Tracy.Wilkison@usdoj.gov Allen.Chiu@usdoj.gov Attorne-sifor Applicant UN OF AMERICA ?3235 a: ?5333 a: 33m UNITED STATES DISTRICT COURT :2 E59 3 53:3 3; FOR THE CENTRAL DISTRICT OF CALIFORNIA IN THE MATTER OF THE SEARCH OF NO. ED AN APPLE IPHONE SEIZED DURING THE EXECUTION OF A SEARCH ORDER COMPELLING APPLE, WARRANT ON A BLACK LEXUS INC. TO ASSIST AGENTS IN SEARCH CALIFORNIA LICENSE PLATE 35KGD203 This matter is before the Court pursuant to an application pursuant to the All Writs Act, 28 U.S.C. 1651, by Assistant United States Attorneys Tracy Wilkison and Allen Chiu, requesting an order directing Apple Inc. (?Apple?) to assist law enforcement agents in enabling the search of a digital device seized in the course of a previously issued search warrant in this matter. For good cause shown, IT IS HEREBY ORDERED that: 1. Apple shall assist in enabling the search of a cellular telephone, Apple make: iPhone 5C, Model: A1532, on the Verizon Network, (the Case 1:15-mc-01902-JO Document 27-1 Filed 02/17/16 Page 3 of 4 PageID 575 pursuant to a warrant of this Court by providing reasonable technical assistance to assist law enforcement agents in obtaining access to the data on the SUBJECT DEVICE. 2. Apple's reasonable technical assistance shall accomplish the following three important functions: (1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi?Fi, or other protocol available on the SUBJECT and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware. 3. Apple's reasonable technical assistance may include, but is. not limited to: providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File that can be loaded onto the SUBJECT DEVICE. The SIF will load and run from Random Access Memory and will not modify the on the actual phone, the user data partition or system partition on the device?s flash memory. The SIF will be coded by Apple with a unique identifier of the phone so that the SIP would only load and execute on the SUBJECT DEVICE. The SIP will be loaded via Device Firmware Upgrade mode, recovery mode, or other applicable mode available to the FBI. Once active on the SUBJECT DEVICE, the SIF will accomplish the three functions specified in paragraph 2. The SIP will be loaded on the SUBJECT DEVICE at either a government facility, or alternatively, at an Apple facility; if the latter, Apple shall provide the government with remote access to the SUBJECT 2 Case 1:15-mc-01902-JO Document 27-1 Filed 02/17/16 Page 4 of 4 PageID 576 DEVICE through a computer allowing the government to conduct passcode recovery analysis. 4. If Apple determines that it can achieve the three functions stated above in paragraph 2, as well as the functionality set forth in paragraph 3, using an alternate technological means from that recommended by the government, and the government concurs, Apple may comply with this Order in that way. 5. Apple shall advise the government of the reasonable cost of providing this service. 6. Although Apple shall make reasonable efforts to maintain the integrity of data on the SUBJECT DEVICE, Apple shall not be required to maintain copies of any user data as a result of the assistance ordered herein. All evidence preservation shall remain the responsibility of law enforcement agents. 7. To the extent that Apple believes that compliance with this Order would be unreasonably burdensome, it may make an application to this Court for relief within five business days of receipt of the Order. SHERI PYM UNITED STATES MAGISTRATE JUDGE FEB 1 2016 DATED: Case 1:15-mc-01902-JO Document 27-2 Filed 02/17/16 Page 1 of 41 PageID 577 Exhibit - Case 1:15-mc-01902-JO Document 27-2 Filed 02/17/16 Page 2 of 41 PageID 578 FILED r?J EILEEN M. DECKER United States Attorney EBJFEHIG PATRICIA A. DONAHUE Assistant United States Attorney Chief, National Security Division TRACY L. WILKISON (California Bar No. Assistant United States Attorney Chief, Cyber and Intellectual Property Crimes Sectio ALLEN W. CHIU (California Bar No. 240516) Assistant United States Attorney Terrorism and Export Crimes Section 1500 United States Courthouse HEB CLERK, 3. DISTRICT COURT312 North Spring Street Los Angeles, Telephone: Facsimile: Email: (213) (213) Attorneys for Applicant UNITED STATES OF AMERICA IN THE MATTER OF THE SEARCH OF AN APPLE IPHONE SEIZED DURING THE EXECUTION OF A SEARCH WARRANT ON A BLACK LEXUS ISBOO, CALIFORNIA LICENSE PLATE 35KGD203 California 90012 894-0622/2435 894-8601 Tracy.Wilkison@usdoj.gov Allen.Chiu@usdoj.gov Act, 28 U.S.C. 1651, for an order that Apple Inc. WIBZUIB CENTRAL 015mm, . UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ED NO. 15-0451M EX PARTE APPLICATION FOR ORDER COMPELLING APPLE INC. TO ASSIST AGENTS IN MEMORANDUM OF POINTS AND DECLARATION OF CHRISTOPHER EXHIBIT The United States of America, by and through its counsel, Assistant United States Attorneys Tracy L. Wilkison and Allen W. in their search of a cellular telephone, Apple make: iPhone 5C, Model: A1532, IMEI: 358820052301412, on the Verizon Network (the search and seizure of the SUBJECT DEVICE was authorized through a Chiu, hereby applies to the Court gg parts pursuant to the All Writs (?Apple?) provide assistance to agents of the Federal Bureau of Investigation The records of this case, including is attached hereto as Exhibit 1. Dated: February 16, 2016 search warrant which was obtained on December 3, - Case Document 27-2 Filed 02/17/16 Page 3 of 41 PageID 579 2015, Docket Number ED No. 15-0451M, and was executed on the same day. This application is based on the attached declaration of FBI Supervisory Special Agent Christopher Pluhar, and the files and the underlying search warrant, which Respectfully submitted, EILEEN M. DECKER United States Attorney PATRICIA A. DONAHUE Assistant United States Attorney Chief, National Security Division TRACY L. ILKISON ALLEN W. CHIU Assistant United States Attorneys Attorneys for Applicant UNITED STATES OF AMERICA -"Case Document 27-2 Filed 02/17/16 Page 4 of 41 PageID 580 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In the hopes of gaining crucial evidence about the December 2, 2015 massacre in San Bernardino, California, the government has sought to search a lawfully-seized Apple iPhone used by one of the mass murderers. Despite both a warrant authorizing the search and the phone owner's consent, the government has been unable to complete the search because it cannot access the iPhone?s content. Apple has the exclusive technical means which would assist. the government in completing its search, but has declined to provide that assistance voluntarily. Accordingly, the government respectfully requests that this Court issue an order compelling Apple to assist in enabling the search commanded by the warrant. II. FACTUAL BACKGROUND The Federal Bureau of Investigation is in possession of a cellular telephone that was used by Syed Rizwan Farook (?Farook?), one of the terrorists who caused the December 2, 2015 shooting death of 14 people, and the shooting and injuring of 22 others, at the Inland Regional Center in San Bernardino, California. The cellular telephone is of Apple make: iPhone 5C, Model: A1532, IMEI: 358820052301412, on the Verizon Network (?the SUBJECT The SUBJECT DEVICE was seized pursuant to a federal search warrant for a black Lexus ISBOO in Docket Number ED 15-0451M, which was issued by the Honorable David T. Bristow, United States Magistrate Judge, on December 3, 2015. The underlying search warrant, which authorizes the search of the contents of the SUBJECT DEVICE, is attached hereto as Exhibit 1 and incorporated herein by reference. lCase Document 27-2 Filed 02/17/16 Page 5 of 41 PageID 581 As explained in the attached declaration of FBI Supervisory Special Agent Christopher Pluhar, the underlying search warrant for the SUBJECT DEVICE arose out of an investigation into the IRC shootings, and the participation by Farook and his wife, in that crime. Tafsheen Malik (?Malik?), Subsequent to execution of the search warrant at issue, the FBI obtained numerous search warrants to search the digital devices and online accounts of Farook and Malik. Through those searches, the FBI has discovered, for example, that on December 2, 2015, at approximately 11:14 a post on a Facebook page associated with Malik stated, ?We pledge allegiance to Khalifa bu al bhaghdadi al quraishi,? referring to Abu Bakr Al Baghdadi, the leader of Islamic State of Iraq and the Levant also referred to as the Islamic State the Islamic State of Iraq and al-sham or Daesh. ISIL, formerly known as Al-Qai?da in Iraq has been designated a foreign terrorist organization by the United States Department of State, and has been so designated since December 2004. Farook and Malik died later that same day in a shoot-out with law enforcement. The government requires Apple's assistance to access the SUBJECT DEVICE to determine, among other things, who Farook and Malik may have communicated with to plan and carry out the IRC shootings, where Farook and Malik may have traveled to and from before and after the incident, and other pertinent information that would provide more information about their and others' involvement in the deadly shooting. The SUBJECT DEVICE is owned by Farook's employer, the San Bernardino County Department of Public Health and was assigned to, and used by, Farook as part of his employment. The -"Case Document 27-2 Filed 02/17/16 Page 6 of 41 PageID 582 has given its consent to the search of the SUBJECT DEVICE and to Apple?s assistance with that search.1 However, despite the search warrant and the owner?s consent, the FBI has been unable to search the SUBJECT DEVICE because it is ?locked? or secured with a user-determined, numeric passcode. More to the point, the FBI has been unable to make attempts to determine the passcode because Apple has written, or ?coded,? its operating systems with a user-enabled ?auto?erase function" that would, if enabled, result in the permanent destruction of the required key material after 10 erroneous attempts at the passcode (meaning that after 10 failed attempts at inputting the passcode, the information on the device becomes permanently inaccessible). When an Apple iPhone is locked, it is not apparent from the outside whether or not that auto-erase function is enabled; therefore, trying repeated passcodes risks permanently denying all access to the contents. Primarily because of this function and the delays that would be introduced by successive incorrect passcodes (discussed below), the government has not been able to attempt to determine the passcode and the files on the SUBJECT DEVICE pursuant to the search warrant, and the FBI cannot do so without Apple?s assistance. Apple is the manufacturer of the SUBJECT DEVICE, and the creator and owner of its operating system and software. Apple has the ability with older Operating systems to obtain the file content from phones without the passcode, and has routinely done so for law enforcement with a search warrant and accompanying In addition, has a written policy that all digital devices are subject to search at any time by the which policy Farook accepted via signature upon his employment. llCase 1:15-mc-01902-JO Document 27-2 Filed 02/17/16 Page 7 of 41 PageID 583 All Writs Act order. While Apple has publicized that it has written the software differently with respect to iPhones such as the SUBJECT DEVICE with operating system 9, Apple yet retains the capacity to provide the assistance sought herein that may enable the government to access the SUBJECT DEVICE pursuant to the search warrant. Specifically, and as detailed below, Apple has the ability to modify software that is created to only function within the SUBJECT DEVICE that would ensure that the added auto-erase function is turned off, allow for electronic submission of test passcodes, and ensure additional delays are not created. This would allow the government multiple investigative attempts to determine the passcode in a timely manner, without fear that the data subject to search under the warrant would be rendered permanently inaccessible. It is this assistance from Apple, which is required to execute the search warrant, that the government now asks the Court to order. DISCUSSION A. Assistance Sought From Apple In sum, the government seeks an order that Apple assist in enabling the search commanded by the warrant by removing, for the SUBJECT DEVICE only, some of the additional, barriers that Apple has coded into its operating system, such as the auto? erase function, the requirement that passwords be entered manually, and any software?invoked delay?upon?failure functions. While the government proposes a specific means of accomplishing this, the government requests that the order allow Apple to achieve the goals of the order in an alternative technical manner if mutually preferable. "Case Document 27-2 Filed 02/17/16 Page 8 of 41 PageID 584 As an initial matter, the assistance sought can only be provided by Apple. As discussed in the attached declaration of SSA Pluhar, the SUBJECT DEVICE is an iPhone So that was designed, the manufactured, and sold by Apple. Apple also wrote and owns software Operating system marketed under the name of and thus is the owner of the operating system software for the phone at issue. Apple's software licensing agreement specifies that its software is ?licensed, not sold," and otherwise prohibits users from transferring any ownership of the software. Further to this point, Apple strictly and exclusively controls the hardware and software that is used to turn on and run its phones. According to Apple's ?white papers" and other publicly available information about the security of its programs, Apple has designed its mobile device hardware, as well as its operating system software, to only permit and run software that has been ?signed? by Apple using its own proprietary methods. These security features prevent other persons, including the government, from running any other software on the SUBJECT DEVICE to attempt to recover data or test passcodes. Apple has designed the 9 operating system for its phones to the data files by a combination of two components one user?determined passcode, and one unique 256-bit Advanced Standard key (referred to as a which is fused into the phone itself during manufacture. Both passcode components are required in combination for the operating system to the phone?s data files. When a user inputs her passcode, the phone conducts a complex calculation as determined by Apple's software Case 1:15-mc-01902-JO Document 27-2 Filed 02/17/16 Page 9 of 41 PageID 585 (and unknown to the government} which combines the UID with the user passcode. If the result is accurate, the data is If one does not know the user?determined passcode, it is possible, although time-consuming, to manually input passcodes one at a time until the passcode is determined. Apple, however, has also designed and written code for additional features which the government cannot overcome on its own. First, Apple has designed a auto-erase function as part of its which destroys the key materials required for and hence renders the contents of the device permanently incapable of being after ten consecutive incorrect passcode attempts. If this auto-erase function is enabled, the Operating system will instantly, irrecoverably, and without warning erase the keys necessary for accessing stored data. There is no way to know by examining the outside of the phone whether or not this function has been enabled, although, in this instance, the government suspects that it has, for the reasons explained in the attached declaration of SSA Pluhar - including because the has stated that the SUBJECT DEVICE was provided to Farook with that function turned on, and the most recent backup from the iCloud showed the function turned on. Accordingly, trying successive passcodes risks permanently losing the ability to access the data on the SUBJECT DEVICE. Because software must be signed by Apple, only Apple is able to modify the software to change the setting or prevent execution of the function. Relatedly, Apple has designed and written code for another non- feature in that its operating system is coded Case Document 27-2 Filed 02/17/16 Page 10 of 41 PageID 586 to invoke time delays after repeated, unsuccessful passcode entries., This means that after each failed passcode entry, the user must wait a period of time before another attempt can be made, up to a 1?hour delay after the ninth failed attempt. Additional wait times can also be added into the software. In order to overcome these hurdles, the government seeks an order requiring Apple to assist in the execution of a search warrant using the capabilities that Apple has retained along within its software, such that the government can attempt to determine the passcode without these additional, features that Apple has coded into its operating system, for the SUBJECT DEVICE only. Apple?s assistance would permit the government to electronically test passcodes without unnecessary delay or fear that the data subject to search under the warrant would be rendered permanently inaccessible. Given that these features were designed and implemented by Apple, that Apple writes and signs the and that Apple routinely patches or updates its to address security features or other functionality, modifying these! features is well within its technical capabilities. Specifically, in order to perform the search ordered in the warrant, the government requests that Apple be ordered to provide the FBI with a custom signed iPhone Software file, recovery bundle, or other Software Image File that can be loaded onto the SUBJECT DEVICE. The SIP would load and run from Random Access 2 These are different terms for the essentially same thing: a software file that will start up/?boot? an iPhone device. '7 ISase Document 27-2 Filed 02/17/16 Page 11 of 41 PageID 587 Memory and accordingly would not change the operating system on the actual SUBJECT DEVICE, the user data partition where the contents of files created or modified by the user are stored), or system partition on the device?s flash memory. Importantly, the SIF would be created with a unique identifier of the SUBJECT DEVICE so that the SIF would only load and execute on the SUBJECT DEVICE.4 Once active on the SUBJECT DEVICE, the SIF would have three primary functions: (1) the SIF would bypass or disable the auto- (2) SUBJECT DEVICE for testing erase function whether or not it has been enabled; the SIF would enable the FBI to submit passcodes to the electronically (meaning that the attempts at the passcode would not have to be manually typed on the iPhone's screen; and (3) the SIF would not introduce any additional delay between failed passcode attempts beyond what is incurred by the hardware on the SUBJECT DEVICE. The SIF would be installed on the SUBJECT DEVICE at either a government facility, or alternatively, at an Apple facility (as is done when Apple recovers data from earlier versions), but passcode attempts would be electronically submitted to the device by- the government. This would allow the government to conduct the passcode attempts while Apple retains the SIF. The government further requests that the order permit Apple to satisfy these three 3 RAM is computer memory that is temporary and requires power to maintain the stored information; once the power is turned off, the memory is lost. 4 Since Apple?s software currently has the capability to query hardware for unique identifiers (serial numbers, ECID, IMEI, etc.), the SIP could be created to only function on the SUBJECT DEVICE, which would mitigate any perceived risk to Apple software as to any other Apple device. As an alternative, the government would be willing to test the passcodes remotely while the SUBJECT DEVICE is in Apple's possession. Ease Document 27-2 Filed 02/17/16 Page 12 of 41 PageID 588 goals, and installation and operation within the SUBJECT DEVICE, in an alternative technical manner if mutually preferable. B. The All writs Act Permits This Order The All Writs Act provides in relevant part that ?all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable As the to the usages and principles of law." 28 U.S.C. 1651(a). Supreme Court explained, ?[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute." Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985). The All Writs Act permits a court, in its ?sound judgment," to issue orders necessary ?to achieve the rational ends of law" and ?the ends of justice entrusted to it." United States v. New York Telephone Co., 434 U.S. 159, 172? 3 (1977) (citations and internal quotation marks omitted). Courts must apply the All Writs Act ?flexibly in conformity with these principles.? Id. at 173; accord United States v. Catoggio, 698 F.3d 64, 67 (2d Cir.2012) have significant flexibility in exercising their authority under the Act.") (citation omitted). Pursuant to the All Writs Act, the Court has the power, ?in aid of a valid warrant, to order a third party to provide nonburdensome technical assistance to law enforcement officers." Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979) (citing United States v. New York. Tel. Co., 434 U.S. 159 (1977)); see also In re U.S. for an Order Directing a Provider of Communication Services to Provide Technical Assistance to Agents of the U.S. Drug Enforcement Administration, 2015 WL 5233551 (D.P.R. August 27, 2015) (granting government?s request pursuant to the All Writs Act for :ase Document 27-2 Filed 02/17/16 Page 13 of 41 PageID 589 technical assistance from provider of electronic communication services to provide information, facilities, and technical assistance to facilitate the consensual recording of all electronic communication to and from a particular mobile phone); United States v. Fricosu, 841 F.Supp.2d 1232, 1238 (D.Colo. 2012) (order issued under All Writs Act requiring defendant to provide password to computer seized pursuant to a search warrant). In New York Telephone Co., the Supreme Court held that courts have authority under the All Writs Act to issue supplemental orders to third parties to facilitate the execution of search warrants. The Court held that ?[t]he power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice." 5g; at 174. In particular, the Court upheld an order directing a phone company to assist in executing a pen register search warrant issued under Rule 41. See id. at 171-76; see also application of U.S. for an Order Authorizing an In-Progress Trace of Wire Commc'ns over Tel. Facilities (Mountain Bell), 616 F.2d 1122, 1132-33 (9th Cir. 1980) (affirming district court's order compelling Mountain Bell to trace telephone calls on grounds that ?the obligations imposed were reasonable ones." (citing New York Tel. Co., 434 U.S. at 172)). New York Telephone Co. also held that ?Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized by a finding of probable 434 U.S. at 170. cause." The Court relied upon the authority of a 10 lJase Document 27-2 Filed 02/17/16 Page 14 of 41 PageID 590 search warrant pursuant to Rule 41 to predicate an All Writs Act order commanding a utility to implement a pen register and trap and trace device before Congress had passed a law that Specifically authorized pen registers by court order. Under New York Telephone Co. and Mountain Bell, the All Writs Act provides authority for this Court to order Apple to assist with steps necessary to perform the search ordered by the warrant for the SUBJECT DEVICE. Further, based on the authority given to the courts under the All Writs Act, courts have issued orders, similar to the one the government is seeking here, that require a manufacturer to assist in accessing a cell phone's files so that a warrant may be executed as originally contemplated. See, In re Order Requiring Inc. to Assist in the Execution of a Search Warrant Issued by This Court by Unlocking a Cellphone, 2014 WL 5510865, at *2 (S.D.N.Y. Oct. 31, 2014); see also United States v. Navarro, No. 13-CR-5525, ECF No. 39 (W.D. Wa. Nov. 13, 2013). Courts have also issued All Writs Act orders in furtherance of warrants in a wide variety of contexts, including: ordering a defendant to produce a copy of the contents of a computer seized pursuant to a federal search warrant (Fricosu, 841 F.Supp. 2d at 1238); ordering a phone company to assist with a trap and trace device (Mountain Bell, 616 F.2d 1122, 1129 (9th Cir. 1980)); ordering a credit card company to produce customer records (United States v. Hall, 583 F. Supp. 717, 722 (E.D. Va. 1984)); ordering a landlord to provide access to security camera videotapes (In re Application of United States for an Order Directing to Provide Access to Videotapes, No. 03-89, 2003 WL 22053105, at *3 (D. Md. Aug. 22, 2003) (unpublished order)); and ordering a phone company to assist with consensual monitoring of 11 Ease Document 27-2 Filed 02/17/16 Page 15 of 41 PageID 591 a customer's calls (In re U.S., No. 15-1242 (M), 2015 WL 5233551, at *4-5 (D.P.R. Aug. 27, 2015) (unpublished order)). Because the orders are typically, as here, sought in the midst of a criminal investigation, they are usually obtained by way of ex parte application and not noticed motion. See, New York Telephone Co., 434 U.S. at 162; In re U.S., 2015 WL 5233551, at In re 2014 WL 5510865, at Application of U.S., 616 F.2d at 1122; In re Application of United States, 2003 WL 22053105, at The government is not aware of any case in which the government obtained a Rule 41 search warrant but was denied an All Writs Act Order when necessary to facilitate the execution of the warrant.5 In New York Telephone Co., the Supreme Court considered three factors in concluding that the issuance of the All Writs Act order to the phone company was appropriate. First, it found that the phone company was not ?so far removed from the underlying controversy that its assistance could not be permissibly compelled.? Id; at 174. Second, it concluded that the order did not place an undue burden on the phone company. See id. at 175. Third, it determined that the assistance of the company was necessary to 5 The government is also aware of multiple other unpublished orders in this district and across the country (obtained by ex parte application) compelling Apple to assist in the execution of a search warrant by accessing the data on devices running earlier versions of 103, orders with which Apple complied. The only exception known to the government is litigation pending before a Magistrate Judge in the Eastern District of New York, where that court sua sponte raised the issue of whether it had authority under the All Writs Act to issue a similar order. That out?of?district litigation remains pending without any issued orders, nor would any such order be binding on this court. In any event, those proceedings represent a change in Apple's willingness to access iPhones operating prior versions, not a change in Apple?s technical ability. However, based on that litigation and communications with Apple, the government anticipates that Apple will avail itself of its ability to apply for relief pursuant to the proposed order. 12 3ase1:15-mC-01902-JO Document 27-2 Filed 02/17/16 Page 16 of 41 PageID 592 achieve the purpose of the warrant. Each of these factors sea-1. supports issuance of the order directed to Apple in this case. 1. Apple is not ?far removed" from this matter First, Apple is not ?so far removed from the underlying controversy that its assistance could not be permissibly compelled." Apple designed, manufactured and sold the SUBJECT DEVICE, and wrote and owns the software that runs the phone which software is preventing the execution of the warrant. Indeed, Apple has positioned itself to be essential to gaining access to the SUBJECT DEVICE or any other Apple device, and has marketed its products on this basis. Apple designed and restricts access to the code for the. auto?erase function the function that makes the data on the phone permanently inaccessible after multiple failed passcode attempts and thus effectively prevents the government from attempting to execute the search warrant without Apple's assistance. The same software Apple is uniquely able to modify also controls the delays Apple implemented between failed passcode attempts which makes the process take too long to enable the access ordered by the court. Especially but not only because iPhones will only run software signed by Apple, and because Apple restricts access to the code of the software that creates these obstacles, there is no other party that has the ability to assist the government in preventing these features from obstructing the search ordered by the court pursuant to the warrant. Apple is also not made ?far removed" by the fact that it is a non-government third party. While New York Telephone Co. involved a public utility, that was not the source of the holding that the All Writs Act order was appropriate. New York Telephone Co. emphasized 13 Document 27-2 Filed 02/17/16 Page 17 of 41 PageID 593 that ?the Company's facilities were being employed to facilitate a criminal enterprise on a continuing basis," and the company's noncompliance ?threatened obstruction of an investigation which would determine whether the Company?s facilities were being lawfully used." New York Telephone Co., 434 U.S. at 174. By analogy, where Apple manufactured and sold a phone used by a person at the center of a terrorism investigation, where it owns and licensed the software used to ?facilitate the criminal enterprise," where that very software now must be used to enable the search ordered by the warrant, compulsion of Apple is permissible under New York Telephone other courts have directed All Writs Act orders based Co. Moreover, on warrants to entities that are not public utilities. For example, neither the credit card company in Hall nor the landlord in Access to Videotapes was a public utility. See Hall, 583 F. Supp. at 722; Access to Videotapes, 2003 WL 22053105, at Apple?s close relationship to the iPhone and its software which are by Apple?s design makes compelling assistance from Apple permissible and the only means of executing the warrant. 2. The order does not place an unreasonable burden on exam Second, the order is not likely to place any unreasonable burden on Apple. Where, as here, compliance with the order would not require inordinate effort, and reasonable reimbursement for that effort is available, no unreasonable burden can be found. New York Telephone, 434 U.S. at 175 (holding that All Writs Act order was not burdensome because it required minimal effort by the company, provided for reimbursement for the company?s efforts, and did not disrupt its business operations); Mountain Bell, 616 F.2d at 1132 14 Ease Document 27-2 Filed 02/17/16 Page 18 of 41 PageID 594 (rejecting telephone company's argument that unreasonable burden would be imposed because of a drain on resources and possibility of system malfunctions because the ?Order was extremely narrow in scope, restricting the operation to [electronic switching system] facilities, excluding the use of manual tracing, prohibiting any tracing technique which required active monitoring by company personnel, and requiring that operations be conducted ?with a minimum of interference to the telephone While the order in this case requires Apple to provide modified software, modifying an operating system - writing software code is not an unreasonable burden for a company that writes software code as part of its regular business. In fact, providers of electronic communications services and remote computing services are sometimes required to write code in order to gather information in response to subpoenas or other process. In addition, the order is tailored for this particular phone, and because it involves preparing a single SIF, it presents no danger of system malfunctions or disrupting business operations. As noted above, Apple designs and implements all of the features discussed, writes and signs the and routinely patches security or functionality issues in its operating system and releases new versions of its operating system to address issues. By comparison, writing a program that turns off features that Apple was responsible for writing to begin with would not be unduly burdensome.6 5 It is worth noting as well that the user of the phone is now dead, the user was made aware of his lack of privacy in the work phone while alive, and the owner of the phone consents to both the search of the phone and to Apple's assistance in this matter. 15 Sase' Document 27-2 Filed 02/17/16 Page 19 of 41 PageID 595 However, to the extent that Apple believes that compliance with the order would be unreasonably burdensome, it can make an application to the Court for relief prior to being compelled to at *2 provide the assistance. See In re 2014 WL 5510865, (including in the issued All Writs Act Order a provision that states that ?to the extent [the manufacturer] believes that compliance with this Order would be unreasonably burdensome, it may delay compliance provided it makes an application to the Court for relief within five business days of receipt of the The proposed order in this case includes a similar directive. 3. Apple's assistance is necessary to effectuate the warrant Third, Apple's assistance is necessary to effectuate the the Court held that the order warrant. In New York Telephone Co., met that standard because ?[t]he provision of a leased line by the Company was essential to the fulfillment of the purpose to learn the identities of those connected with the gambling operation for which the pen register order had been issued." 434 U.S. at 175. Here, the proposed All Writs Act order in this matter also meets this standard, as it is essential to ensuring that the government is able to perform the search ordered by the warrant. In this case, the ability to perform the search ordered by the The user warrant on the SUBJECT DEVICE is of particular importance. of the phone, Farook, is believed to have caused the mass murder of a large number of his coworkers and the shooting of many others, and to have built bombs and hoarded weapons for this purpose. The government has been able to obtain several iCloud backups for the SUBJECT DEVICE, and executed a warrant to obtain all saved iCloud 16 Document 27-2 Filed 02/17/16 Page 20 of 41 PageID 596 data associated with the SUBJECT DEVICE. Evidence in the iCloud account indicates that Farook was in communication with victims who were later killed during the shootings perpetrated by Farook on and toll records show that Farook communicated December 2, 2015, with Malik using the SUBJECT DEVICE. Importantly, however, the most recent backup of the iCloud data obtained by the government was dated October 19, 2015, approximately one-and?a-half months before the shooting. This indicates to the FBI that Farook may have disabled the automatic iCloud backup function to hide evidence, and demonstrates that there may be relevant, critical communications and data around the time of the shooting that has thus far not been accessed, may reside solely on the SUBJECT DEVICE, and cannot be accessed by any other means known to either the government or Apple. As noted above, assistance under the All Writs Act has been compelled to provide contents of devices seized pursuant to a search warrant. In Eriggsu, a defendant's computer whose contents were was seized, and defendant was ordered pursuant to the All Writs Act to assist the government in producing a copy of the contents of the computer. 841 F.Supp. 2d at 1237 (?There is little question here but that the government knows of the existence and location of the computer's files. The fact that it does not know the specific content of any specific documents is not a barrier to Here, the type of assistance does not even require Apple to assist in producing the contents, the assistance is rather to facilitate the FBI's attempts to test passcodes. l7 Ease Document 27-2 Filed 02/17/16 Page 21 of 41 PageID 597 IV. CONCLUSION For the foregoing reasons, the government respectfully requests that the Court order Apple to assist the FBI in the search of the SUBJECT DEVICE as detailed in the proposed order. Dated: February 16, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney PATRICIA A. DONAHUE Assistant United States Attorney Chief, National Security Division WP 00;] TRACY L. ILKISON ALLEN W. CHIU Assistant United States Attorneys Attorneys for Applicant UNITED STATES OF AMERICA 18 Ease Document 27-2 Filed 02/17/16 Page 22 of 41 PageID 598 DECLARATION OF CHRISTOPHER PLUHAR I, Christopher Pluhar, being duly sworn, declare and state as follows: I. INTRODUCTION 1. I am a Supervisory Special Agent with the Federal Bureau of Investigation and Director of the Orange County Regional Computer Forensics Laboratory, Orange, California The is a state of the art computer forensics laboratory comprised of task force officers from 15 agencies in Orange, Los Angeles, San Bernardino, and Riverside Counties. The laboratory specializes in the archival, preservation, and analysis of items of digital evidence, including computers, mobile devices, removable media (thumb drives, CDs etc) and Audio/Video equipment. 2. I have been a computer forensic examiner for the FBI since 2001, have attended 700+ hours of specialized training in computer/device forensics, and have certifications to conduct forensic analysis on Windows, Macintosh, and Linux/Unix systems, as well as mobile devices and cell phones. I have been the Director of the since November of 2013. 3. I have consulted extensively with the FBI's and Electronic Analysis Unit in this matter, and bring their experience to bear in this declaration. II. PURPOSE OF DECLARATION 4. This declaration is made in support of an application for an order by the Court compelling Apple Inc. (?Apple?) to assist the FBI in its effort to search of a cellular telephone, Apple make: iPhone 5C, Model: A1532, on the Verizon Network base Document 27-2 Filed 02/17/16 Page 23 of 41 PageID 599 SEIZURE AND EXAMINATION OF SUBJECT DEVICE 5. The SUBJECT DEVICE was seized pursuant to the search warrant in Case No. ED 15-0451M, issued by the Honorable David T. Bristow, United States Magistrate Judge, on December 3, 2015. The SUBJECT DEVICE was found inside of the SUBJECT VEHICLE identified in the warrant. The underlying search warrant is attached hereto as Exhibit 1 and incorporated by reference. 6. I know based on my participation in this investigation and conversations with other involved agents and San Bernardino County Information Technology personnel, that the search warrant arose out of an investigation into the December 2, 2015 shooting death of 14 people, and the shooting and injuring of 22 others, at the Inland Regional Center in San Bernardino, California, and the participation by Syed Rizwan Farook (?Farook?) and his wife Tafsheen Malik (?Malik?) in that crime. Subsequent to the search warrant at issue, the FBI has obtained numerous warrants to search the digital devices and online accounts of Farook and Malik. Through those searches the FBI has discovered, for example, that on December 2, 2015, at approximately 11:14 a post on a Facebook page associated with Malik stated, ?We pledge allegiance to Khalifa bu al bhaghdadi al quraishi," referring to Abu Bakr Al Baghdadi, the leader of Islamic State of Iraq and the Levant also referred to as the Islamic State or the Islamic State of Iraq and al-sham or Daesh. ISIL, formerly known as Al- Qa?ida in Iraq has been designated a foreign terrorist organization by the United States Department of State and has been so designated since December 2004. Farook and Malik died later that same day in a shoot-out with law enforcement. 3ase?1515-mc?01902-JO Document 27-2 Filed 02/17/16 Page 24 of 41 PageIDl#: 600 7. The SUBJECT DEVICE is owned by Farook's employer at the San Bernardino County Department of Public Health and was assigned to, and used by, Farook as part of his employment. While the does not have access to the passcode to the phone, it has given its consent to the search of it and to Apple's assistance with that search. ?locked? or secured with a numeric 8. The SUBJECT DEVICE is passcode. I have been very involved in the attempts to gain access to the locked phone and comply with the search warrant. With the consent of the I and other agents have been able to obtain several iCloud backups for the SUBJECT DEVICE, and I am aware that a warrant was executed to obtain from Apple all saved iCloud data associated with the SUBJECT DEVICE. I know from speaking with other FBI agents that evidence in the iCloud account indicates that Farook was in communication with victims who were later killed during the shootings perpetrated by Farook on December 2, 2015. In addition, toll records show that Farook communicated with Malik using the SUBJECT DEVICE between July and November 2015, but this information is not found in the backup iCloud data. Importantly, the most recent backup is dated October 19, 2015, which indicates to me that Farook may have disabled the automatic iCloud backup feature associated with the SUBJECT DEVICE. I believe this because I have been told by that it was turned on when it was given to him, and the backups prior to October 19, 2015 were with almost weekly regularity. I further believe that there may be relevant, critical communications and data on the SUBJECT DEVICE around the time of the shooting which has thus far not been accessed, may reside solely on the SUBJECT DEVICE, and cannot be accessed by any other means known Ease Document 27-2 Filed 02/17/16 Page 25 of 41 PageID 601 to either the government or Apple. In addition, I have personally examined two other mobile devices belonging to Farook that were physically destroyed and discarded in a dumpster behind the Farook residence. 9. I have explored other means of obtaining this information with employees of Apple and with technical experts at the FBI, and we have been unable to identify any other methods feasible for gaining access to the currently inaccessible data stored within the SUBJECT DEVICE. IV. REQUESTED ASSISTANCE 10. I know based on my training and experience, knowledge of this case and review of Apple?s publicly available information that the SUBJECT DEVICE is an iPhone 5c that was designed, manufactured, and sold by Apple. Apple also wrote and owns the software operating system marketed under the name of and thus is the owner of the operating system for the phone at issue. Apple's software licensing agreement specifies that its software is ?licensed, not sold," and otherwise prohibits users from transferring any ownership of the 108 software. 11. Apple strictly controls the hardware and software that is used to turn on and run its phones. According to Apple's ?white papers" and other publicly available information about the security of its programs, Apple has designed its mobile device hardware as well as its operating system software to only permit and run software that has been ?signed? by Apple using its own proprietary methods. Apple has also added hardware? enforced features to the A6 processor found in the iPhone 5C which verifies software using Apple?s signature, ensuring Document 27-2 Filed 02/17/16 Page 26 of 41 PageID 602 that Apple devices can only run verified/signed software during the booting process (when the phone is being turned on). These features prevent the government from running any other software on the SUBJECT DEVICE to attempt to recover data. 12. In addition, an iPhone 5c is by a combination of two components one user-determined passcode, and one unique 256- bit Advanced Standard key (referred to as a fused into the phone itself during manufacture. Both passcode components are required in combination for the phone to its contents. When a user inputs the user?determined passcode, the phone conducts a complex calculation as determined by Apple's software (and unknown to the government) which combines the UID with the user passcode. If the result is accurate, the data is 13. If one does not know the user-determined passcode, it is possible, although time-consuming, to manually input passcodes one at a time until the passcode is determined. Apple, however, has also designed and written code for additional features which the government cannot overcome on its own. First, Apple has designed a auto-erase function as part of its which destroys key material required for and hence renders the contents of the device incapable of being after ten consecutive incorrect passcode attempts. If this erase function is enabled, will instantly, irrecoverably, and without warning erase the keys necessary for accessing stored data. Because software must be signed by Apple, only Apple is able to modify the 108 software to change the setting or prevent execution of the ?Easel Document 27-2 Filed 02/17/16 Page 27 of 41 PageID 603 function. There is no way to know by examining the outside of the phone whether or not this function has been turned on in the SUBJECT DEVICE, although, in this instance, I suspect that it has because I am told by an employee of that the SUBJECT DEVICE was provided to Farook with the auto-erase function turned on, and I know from my review of the most recent backup from the iCloud that it showed the function turned on. 14. Relatedly, Apple has designed and written code for another based feature in that its operating system is coded to invoke time delays which escalate after repeated, unsuccessful passcode entries. This means that after each failed passcode entry, the user must wait a period of time before another attempt can be made. From Apple documentation and testing, the time delays for the iPhone SC are invoked by Apple software upon failed login attempts. Apple documentation states that the software invokes no delay for the first four attempts; a 1-minute delay after the fifth attempt; a 5-minute delay after the sixth attempt; a fifteen minute delays after the seventh and eight attempt; and a 1? hour delay after the ninth attempt. Additional wait times can also be added into the software. 15. In order to allow the government to perform the search ordered in the warrant, and the ability to test passcodes to the SUBJECT DEVICE without unnecessary delay or fear that the data subject to search under the warrant would be rendered permanently inaccessible, the government requests that Apple be ordered to provide the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File that can be loaded onto the SUBJECT DEVICE. The SIF would load and run from Random Access Ease 1:15-mc-01902-JO Document 27-2 Filed 02/17/16 Page 28 of 41 PageID 604 Memory and would not modify the on the actual phone, the' user data partition or system partition on the device's flash memory. The SIF would be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE. Since Apple?s software currently has the capability to query hardware for unique identifiers (serial numbers, ECID, IMEI, etc.), the SIP could be created to only function on the SUBJECT DEVICE, which would mitigate any perceived security risk to Apple software. The SIF would be loaded via Device Firmware Upgrade mode, recovery mode, or other applicable mode available to the FBI. In addition, Apple could run the SIF from within its facility, allowing passcodes to be tested electronically via remote network connection. the SIF would have 16. Once active on the SUBJECT DEVICE, three important functions: (1) the SIF would bypass or disable the auto-erase function whether or not it has been enabled on the SUBJECT DEVICE, meaning that multiple attempts at the passcode could be made without fear that the data subject to search under the warrant would be rendered permanently inaccessible; (2) the SIF would enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi- Fi, or other protocol available on the SUBJECT DEVICE (meaning that the attempts at the passcode would not have to be manually typed on the phone?s screen), or alternately, Apple could be given the phone as is done when Apple recovers data from earlier versions, but provide the government remote access to the SUBJECT DEVICE through a computer allowing the government to conduct passcode recovery analysis. This would allow the government to conduct the analysis ?Ease Document 27-2 Filed 02/17/16 Page 29 of 41 PageID 605 without Apple actually providing the government with the and (3) the SIP would not introduce any additional delay between passcode attempts beyond what is incurred by the Apple hardware. 17. Based on my (and the CEAU's) review of available information about Apple's programs, Apple has the technological capability of providing this software without it being an undue burden. Apple routinely patches security or functionality issues in its operating system and releases new versions of its operating system to address issues. I know from my training and experience, and that of my fellow agents, that providers of electronic communications services and remote computing services sometimes must write code in order to gather the information necessary to respond to subpoenas and other process, and that this is not a large burden. 18. However, in an abundance of caution, the government also requests that the order permit Apple to satisfy the three goals of the SIF and the loading of the SIF onto the SUBJECT DEVICE in an alternative technical manner if mutually preferable. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on February 16, 2016, Riverside, California. m, ChrL?topg?r/Fluhar FBI Supervisory Special Agent Case Document 27-2 Filed 02/17/16 Page 30 of 41 PageID 606 EXHIBIT 1 ?Case' Document 27-2 Filed 02/17/16 Page 31 of 41 PageID 607 mat Sena A0 93 (Rev th09) Search and Seizure Warrant (USAO CDCA Rev 0 t2013) UNITED STATES DISTRICT COURT for the Central District of California In the Matter of the Search of {Brie?y describe the property to be searched or identt/j: the person by name and address) I I a a 1 Black Lexus lS300 California License Plate 5 handicap placard 360466F. Vehicle Identi?cation Number SEARCH AND SEIZURE WARRANT To: Any authorized law enforcement of?cer An application by a federal law enforcement of?cer or an attorney for the government requests the search of the following person or property located in the Central District of California the person or describe the property to be searched and give its location): See Attachment A-2 The person or property to be searched, described above, is believed to conceal (identify the person or describe the property to be seized): See Attachment I ?nd that the or any recorded testimony, establish probable cause to search and Seize the person or property. YOU ARE COMMANDED to execute this warrant on or before 14 days from the date of its issuance (not to exceed )4 days) CI in the daytime 6:any time in the day or night as I ?nd reasonable cause has been established. Unless delayed notice is authorized below, you must give a cepy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken, or leave the copy and receipt at the place where the property was taken. The of?cer executing this warrant, or an of?cer present during the execution of the warrant, must prepare an inventory as required by law and return this warrant and inventory to United States Magistrate Judge on duty at the time of the return through a ?ling with the Clerk's Of?ce. (name) l3 1 ?nd that immediate noti?cation may have an adverse result listed in 18 U.S.C. ?2705 (except for delay of trial), and authorize the of?cer executing this warrant to delay notice to the person who, or whose property, will be searched or seized (check the appropriate box) for days (not to exceed 30). until, the factsjustifying, eI date 1? Date and time issued: {2 7.: . A I signaturh? City and state: Riverside, California David T. Bris . U.S. Magistrate Judge Printed name and title AUSA: awe, MPT My Ca?se Document 27-2 Filed 02/17/16 Page 32 of 41 PageID 608 A0 93 (Rev. 12/09) Search and Seimre Warrant (Page 2) Return Case No. Date and time warrant executed: Copy of warrant and inventory left with: Inventory made in the presence of. Inventory of the property taken and name of any person(s) seized: [Please provide a description that would be suf?cient to demonstrate that the items seized fall within the items authorized to be seized pursuant to the warrant type of documents, as opposed to ?miscellaneous documents") as well as the approximate volume of any documents Seized number of boxes]. If reference is made to an attached description of property, specify the number of pages to the attachment and any case number appearing thereon] Certi?cation (by of?cer present during the execution of the warrant) I declare under penalty ofperjw'y that I am an o?icer who executed this warrant and that this inventory is correct and was returned along with the original warrant to the designated udge through a ?ling with the Clerk's O?ice. Date: Executing o?icer 's signature Printed name and titie AUSA: AWC, MPT Ca?se Document 27-2 Filed 02/17/16 Page 33 of 41 PageID 609 ATTACHMENT A-Z PROPERTY TO BE SEARCHED Black Lexus 18300 California license plate handicap placard 360466F, vehicle identification number 1T INSTRUMENTALITY PROTOCOL Case Document 27-2 Filed 02/17/16 Page 34 of 41 PageID 610 ATTACHMENT I. ITEMS TO BE SEIZED 1. The items to be seized are evidence, contraband, fruits, or instrumentalities of violations of (1) 18 U.S.C. 844(d) (Transportation or Receipt of Explosive Devices with the Intent to Injure or Kill); (2) 18 U.S.C. 844(i) (Attempted Destruction by Explosives of Any Building, Person, or Property); and (3) 18 U.S.C. 844(n) (Conspiracy): a. Explosives, smokeless powder, black powder, gunpowder, or any other item that can be pipes, and wires; b. Pipes and any items that may cause fragmentation; c. Initiating devices to include burning fuse, hobby fuse, blasting caps, manual or electrical timers, dry cell batteries, electrical wire, alligator clips, electrical tape of assorted colors commonly used to secure exposed electrical wiring; d. Books related to the construction of explosives; e. Tools used in the construction of explosives such as include hand held vise grips, table mounted vise grips, pipe cutters, electrical; and non?electrical drills and drill bits. f. Address and/or telephone books, telephones, pagers, answering machines, customer lists, and any papers reflecting names, addresses, telephone numbers, pager numbers, 18 INSTRUMENTALITY PROTOCOL ?Case' 1315-mc?01902?JO Document 27-2 Filed 02/17/16 Page 35 of 41 PageID 611 fax numbers and/or identification numbers of sources of supply of explosives; g. No more than 5 documents and records, including electronic mail and electronic messages, reflecting the ownership, occupancy, possession, or control of the SUBJECT LOCATION, including lease/rental agreements, rent receipts, registration documents, bank records, utility bills, telephone bills, other addressed envelopes, and correspondence; h. Any digital device used to facilitate the above? listed violations and forensic copies thereof. i. With respect to any digital device used to facilitate the above?listed violations or containing evidence falling within the scope of the foregoing categories of items to be seized: i. evidence of who used, owned, or controlled the device at the time the things described in this warrant were created, edited, or deleted, such as logs, registry entries, configuration files, saved usernames and passwords, documents, browsing history, user profiles, e?mail, e?mail contacts, chat and instant messaging logs, photographs, and correspondence; ii. evidence of the presence or absence of software that would allow others to control the device, such as viruses, Trojan horses, and other forms of malicious software, 19 INSTRUMENTALITY PROTOCOL Case Document 27-2 Filed 02/17/16 Page 36 of 41 PageID 612 as well as evidence of the presence or absence of security software designed to detect malicious software; evidence of the attachment of other devices; iv. evidence of counter?forensic programs (and associated data) that are designed to eliminate data from the device; v. evidence of the times the device was used; vi. passwords, keys, and other access devices that may be necessary to access the device; vii. applications, utility programs, compilers, interpreters, or other software, as well as documentation and manuals, that may be necessary to access the device or to conduct a forensic examination of it; records of or information about Internet Protocol addresses used by the device; ix. records of or information about the device's Internet activity, including firewall logs, caches, browser history and cookies, ?bookmarked? or ?favorite? web pages, search terms that the user entered into any Internet search engine, and records of user?typed web addresses. 2. As used herein, the terms ?records,? ?documents,? ?programs,? ?applications,? and ?materials? include records, documents, programs, applications, and materials created, ED INSTRUMENTALITY PROTOCOL Case Document 27-2 Filed 02/17/16 Page 37 of 41 PageID 613 modified, or stored in any form, including in digital form on any digital device and any forensic copies thereof. 3. As used herein, the term ?digital device? includes any electronic system or device capable of storing or processing data in digital form, including central processing units; desktop, laptop, notebook, and tablet computers; personal digital assistants; wireless communication devices, such as telephone paging devices, beepers, mobile telephones, and smart phones; digital cameras; peripheral input/output devices, such as keyboards, printers, scanners, plotters, monitors, and drives intended for removable media; related communications devices, such as modems, routers, cables, and connections; storage media, such as hard disk drives, floppy disks, memory cards, optical disks, and magnetic tapes used to store digital data (excluding analog tapes such as and security devices. II. SEARCH PROCEDURE FOR DIGITAL DEVICES 4. In searching digital devices or forensic copies thereof, law enforcement personnel executing this search warrant will employ the following procedure: a. Law enforcement personnel or other individuals assisting law enforcement personnel (the ?search team?) will, in their discretion, either search the digital device(s) on?site or seize and transport the device(s) to an appropriate law enforcement laboratory or similar facility to be searched at 21 INSTRUMENTALITY PROTOCOL Case l:15-mc-01902-JO Document 27-2 Filed 02/17/16 Page 38 of 41 PageID 614 that location. The search team shall complete the search as soon as is practicable but not to exceed 60 days from the date of execution of the warrant. If additional time is needed, the government may seek an extension of this time period from the Court on or before the date by which the search was to have been completed. b. The search team will conduct the search only by using search protocols specifically chosen to identify only the specific items to be seized under this warrant. i. The search team may subject all of the data contained in each digital device capable of containing any of the items to be seized to the search protocols to determine whether the device and any data thereon falls within the list of items to be seized. The search team may also search for and attempt to recover deleted, Thidden.? or data to determine. pursuant to the search protocols, whether the data falls within the list of items to be seized. ii. The search team may use tools to exclude normal operating system files and standard third?party software that do not need to be searched. c. When searching a digital device pursuant to the specific search protocols selected, the search team shall make and retain notes regarding how the search was conducted pursuant to the selected protocols. 22 INSTRUMENTALITY PROTOCOL Case 1:15-mc-01902-Jo Document 27-2 Filed 02/17/16 Page 39 of 41 PageID 615 d. If the search team, while searching a digital device, encounters immediately apparent contraband or other evidence of a crime outside the scope of the items to be seized, the team shall immediately discontinue its search of that device pending further order of the Court and shall make and retain notes detailing how the contraband or other evidence of a crime was encountered, including how it was immediately apparent contraband or evidence of a crime. e. If the search determines that a digital device does not contain any data falling within the list of items to be seized, the government will, as soon as is practicable, return the device and delete or destroy all forensic copies thereof. f. If the search determines that a digital device does contain data falling within the list of items to be seized, the government may make and retain copies of such data, and may access such data at any time. g. If the search determines that a digital device is (1) itself an item to be seized and/or (2) contains data falling within the list of items to be seized, the government may retain forensic copies of the digital device but may not access them (after the time for searching the device has expired) absent further court order. h. The government may retain a digital device itself until further order of the Court or one year after the 23 INSTRUMENTALITY PROTOCOL Case Document 27-2 Filed 02/17/16 Page 40 of 41 PageID 616 conclusion of the criminal investigation or case (whichever is latest), only if the device is determined to be an instrumentality of an offense under investigation or the government, within 14 days following the time period authorized by the Court for completing the search, obtains an order from the Court authorizing retention of the device (or while an application for such an order is pending). Otherwise, the government must return the device. i. Notwithstanding the above, after the completion of the search of the digital devices, the government shall not access digital data falling outside the scope of the items to be seized absent further order of the Court. 5. In order to search for data capable of being read or interpreted by a digital device, law enforcement personnel are authorized to seize the following items: a. Any digital device capable of being used to commit, further or store evidence of the offense(s) listed above; b. Any equipment used to facilitate the transmission, creation, diaplay, encoding, or storage of digital data: c. Any magnetic, electronic, or optical storage device capable of storing digital data; 2d INSTRUMENTALITY PROTOCOL Case Document 27-2 Filed 02/17/16 Page 41 of 41 PageID 617 d. Any documentation, operating logs, or reference manuals regarding the operation of the digital device or software used in the digital device; e. Any applications, utility programs, compilers, interpreters, or other software used to facilitate direct or indirect communication with the digital device; f. Any physical keys, devices, dongles, or similar physical items that are necessary to gain access to the digital device or data stored on the digital device; and g. Any passwords, password files, test keys, codes, or other information necessary to access the digital device or data stored on the digital device. 6. The special procedures relating to digital devices found in this warrant govern only the search of digital devices pursuant to the authority conferred by this warrant and do not apply to any search of digital devices pursuant to any other court order. 7. The government is allowed to share the information obtained from this search (to include copies of digital media) with any government agency investigating, or aiding in the investigation of, this case or related matters. 25 INSTRUMENTALITY PROTOCOL