Case y?d p?A p?pa - 14c 15 f'52 filN THE MATTER or THE SEARCH David LaBahn State Bar No. 128930 ASSOCIATIO 1615 Street NW, Suite 1100 Washington, DC. 20036 Phone: ?1202) 861?2481 Ema11: av1d.1abahn@apa1nc.com Joseph V. DeMarco Urvashi Sen DEVORE DEMARCO LLP 99 Park Avenue, Suite 1100 New York, New York 10016 Phone: 212 922-9499 Fax:. 212 922-1799 Ema11: de devoredemarco.com usen@devoredemarco.com Attome for Amicus Curiae APPLE IPHONE SEIZED DURING THE EXECUTION OF A SEARCH WARRANT ON A BLACK PLATE 35KGD203 LEXIS IS300, CALIFORNIA LICENSE 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 1 of 18 Page ID #:616 OF PROSECUTI ATTORNEYS, INC. edera Law Enforcement Officers Association, the Association of Prosecuting Attorneys, Inc., and the National Sheriffs Association UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION ED No. CM BRIEF OF AMICI URIAE FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION, ASSOCIATION OF PROSECUTING ATTORNEYS, INC., AND NATIONAL ASSOCIATION IN SUPPORT OF THE MOTION TO COMPEL APPLE, INC. TO COMPLY WITH THIS FEBRUARY 16, 2016 ORDER COMPELLIN ASSISTANCE IN SEARCH Hearing Date: March 22, 2016 Hearing Time: 1:00 Courtroom: 3 or Judge: Hon. Sheri BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM 16-10-SP Case Document 33 Filed 03/03/16 Page 2 of 18 Page ID #:617 TABLE OF CONTENTS Statement of Interest of Amici Curiae ..1 Facts and Summary of the Argument ..3 I. Apple?s Refusal to Provide Reasonable Assistance to the Government Hinders Everyday Law Enforcement and Endangers Public Safety ..4 II. A Ruling in Favor of Apple Here Will Have a Chilling Effect on Public Assistance to Law Enforcement Conclusion .. 14 TABLE OF AUTHORITIES Cases Babington v. Yellow Taxi Corp., 164 NE. 726 (NY. 1928) .. 12 In the Matter of Search of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus 1S3 00, Cal. License Plate 35KGD203, No. ED 15-0451M, 2016 WL 618401 (CD. Cal. Feb. 16, 2016) ..3 Quarles and Butler, 158 US. 532 (1895) Roviaro v. United States, 353 US. 53 (1957) ..12 State v. Floyd, 584 A.2d 1157 (Conn. 1991) ..12 United States v. New York Telephone Co. 434 US. 159 (1977) ..12,13 i BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM Case I4 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 3 of 18 Page ID #:618 Statutes 28 U.S.C. 1651 ..13 Cal. Penal Code 150 ..12 Other Authorities Apple Inc., Privacy Government Information Requests Apple, requests/ (last visited Feb. 29, 2016) ..10 The Tightrope: Balancing Americans ?Security and Privacy: Hearing Before the H. Judiciary Comm, 1 14th Cong. 6 (2016) (written testimony of Cyrus R. Vance, Jr., NY. County Dist. Attorney) ..5, 6 Lori Hinnant Karl Rjtter, Discarded Cell Phone Led to Paris Attacks Ringleader, Associated Press, Nov. 19, 2015 ..10 YORK COUNTY DISTRICT OFFICE, REPORT OF THE MANHATTAN DISTRICT OFFICE ON SMARTPHONE AND PUBLIC SAFETY 9 (Nov. 18, 2015) Report?) ..6, 7, 8, 9, 10 NPR, It?s Not Just The iPhone Law Enforcement Wants To Unlock, Feb. 21, 2016, 4675471 80/ wants~to?unlock (last visited Feb. 25, 2016) ..5 Peter Holley, A Locked iPhone May Be the Only Thing Standing Between Police and This Woman?s Killer, Wash. Post, Feb. 26, 2016 ..9 BRIEF OF AMICI CURIAE FLEOA, APA Case 25 26 27 28 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 4 of 18 Page ID #:619 STATEMENT OF INTEREST OF AMICI URIAE The Federal Law Enforcement Of?cers Association a volunteer organization founded in 1977, is the largest nonpartisan, nonpro?t professional association exclusively representing federal law enforcement of?cers. FLEOA represents more than 26,000 uniformed and non?uniformed federal law enforcement of?cers from over 65 different agencies. LEOA is a charter member of the Department of Homeland Security Federal Law Enforcement Advisory Board; holds two seats on the Congressional Badge of Bravery Federal Board; and serves on the Executive Board of the National Law Enforcement Of?cers Memorial Fund and the National Law Enforcement Steering Committee. FLEOA provides a legislative voice for the federal law enforcement community and monitors legislative and other legal issues that may impact federal law enforcement of?cers. The Association of Prosecuting Attorneys, Inc. is a national not- for-pro?t organization headquartered in Washington, DC. and made up of elected and appointed prosecuting attorneys from throughout the nation. The APA provides valuable resources such as training and technical assistance to prosecutors in an effort to develop proactive and innovative prosecutorial practices that prevent crime, ensure equal justice, and help make our communities safer. The APA also acts as a global forum for the exchange of ideas, allowing prosecutors to collaborate with all criminal justice partners, providing timely and effective technical assistance as well as access to technology for the enhancement of the prosecutorial function. The APA serves as an advocate for prosecutors on emerging issues related to the administration of justice and development of partnerships. Chartered in 1940, the National Sheriffs' Association is a professional association headquartered in Alexandria, Virginia, and dedicated to serving the Of?ce of Sheriff and its af?liates through police education, police BRIEF OF AMICI CURIAE FLEOA. APA, AND NSA ED No. CM Casr 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 5 of 18 Page ID #:620 training, and general law enforcement information resources. The NSA represents thousands of sheriffs, deputies and other law enforcement and public safety professionals, as well as concerned citizens nationwide. The NSA has provided programs for sheriffs, their deputies, chiefs of police, and others in the ?eld of criminal justice in order to enable them to perform their jobs in the best possible manner and to better serve the people of their cities, counties, or other jurisdictions. The NSA has worked to forge cooperative relationships with local, state, and federal criminal justice professionals across the nation to network and share information about homeland security programs and projects. Amici members are called upon on a daily basis to protect and serve the public by investigating criminal activity and wrongdoing and ensuring that the individuals responsible for it pay the penalty for their crimes. In order to ful?ll their duties, Amici members must have access to all reasonable means of procuring relevant evidence. In this digital age, data stored on mobile devices has proven time and again to be critical in assisting law enforcement of?cers to do their jobs. Amici and their members thus have a strong interest in ensuring that the Court?s February 16, 2016, Order is upheld and enforced. 2 BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM p?A . 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 6 of 18 Page ID #:621 FACTS AND SUMMARY OF THE ARGUMENT This is a case in which this Court issued a February 16, 2016, Order (the ?Order?) directing Apple Inc. (?Apple?) to assist in enabling the government?s search of the government-owned iPhone 5c used by Syed Rizwan Farook (?the Terrorist?) by providing ?reasonable technical assistance to assist law enforcement agents in obtaining access to the data? on that device.1 Apple has refused to comply with the Order. On February 19, 2016, the government ?led a motion to compel Apple to comply (?Government?s Motion to Compel?)2, and, on February 25, 2016, Apple ?led an opposition to that motion and a motion to vacate the Order (?Apple?s Opposition?). 3 Amici respectfully submit this brief in support of the Government?s Motion to Compel. Amici believe that the position Apple has taken is a dangerous one. First, Apple?s refusal to provide assistance has far-reaching public safety rami?cations by making it dif?cult, and in some cases impossible, for law enforcement to ful?ll I Order Compelling Apple, Inc. To Assist Agents in Search, In the Matter of Search Of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus IS300, Cal. License Plate 35KGD203, No. ED 15-0451M, 2016 WL 618401, at *1?2 (CD. Cal. Feb. 16, 2016). 2 Motion to Compel Apple Inc. To Comply With Court?s February 16, 2016 Order Compelling Apple to Assist Agents In Its Search, In the Matter of Search of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus IS300, Cal. License Plate 35KGD203, ED No. CM 16?10 (SP), Dkt. 1 (CD. Cal. Feb.19,2016) 3 Apple Inc?s Motion To Vacate Order Compelling Apple Inc. To Assist Agents in Search, And Opposition To Government?s Motion To Compel Assistance, In the Matter of Search of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus IS300, Cal. License Plate 35KGD203, ED No. CM 16? 10 (SP), Dkt. 16 (CD. Cal. Feb. 25, 2016). 3 BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM on (n \DooxJChUI-b-wmy? 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 7 of 18 Page ID #:622 its obligation to investigate crimes, protect the public by bringing criminals to justice, and enforce the law. Second, if Apple were to prevail, the public at large may itself think twice about cooperating with law enforcement when called upon to do so. ARGUMENT REFUSAL TO PROVIDE REASONABLE ASSISTANCE TO THE GOVERNMENT HINDERS EVERYDAY LAW ENFORCEMENT AND ENDANGERS PUBLIC SAFETY The Parties have extensively briefed the utility and necessity of searching the cell phone used by the Terrorist on the day of the attacks in San Bernardino. Yet beyond the facts of that heinous crime, a ruling which validates Apple?s position in this litigation can only serve to hamper the ability of Amici to bring criminals to justice and justice to victims. To be clear: if Apple can refuse lawful court orders to reasonably assist law enforcement, public safety will suffer. Crimes will go unsolved and criminals will go free. Apple?s iPhones and iPads are ubiquitous. They are powerful. They are used by criminals, as well as crime victims. And, until recently, Apple was willing to assist law enforcement in executing court orders to search these devices. But Apple has changed course. As this case illustrates, it has redesigned its operating system to make its products far harder to search pursuant to a warrant, and in this case decided not to do what it can to help investigate the Terrorist and his murderous crimes. These decisions -- decisions made in Apple?s boardroom are already impeding and damaging investigations in law enforcement of?ces around the country. As law enforcement officials who are sworn to ensure public safety, and to solve crimes, Amici are the ?rst responders, the investigators, the law enforcers and the prosecutors who, day-in and day?out, must live with Apple?s decisions. To Amz'ci, 4 BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM Case5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 8 of 18 Page ID #:623 this is not a theoretical debate. It is as real as a killer gone free, as real as a pedophile planning for his next prey. The importance of access to evidence found on iPhones, iPads, and similar devices is emphasized by actual, real world examples undisputed by Apple. For example, in one big-city district attorney's of?ce approximately 50% of the mobile devices currently recovered during investigations are inaccessible to law enforcement due to the fact that they are running 8.4 That percentage will, of course, only grow as time goes on and newer devices replace older ones. As the DA in that county put it: In some cases, we can't move at all. We can't establish liability or responsibility because we can't access the phone. In others, it's affecting our ability to gather all the evidence that's needed to make sure that we are making the right judgments. And I think it's very important for people to understand that a prosecutor's job is to investigate, get all the information and then make the right judgment as to whether or not we can go forward. It's also our responsibility to make sure that we are prosecuting the right people. And when we don't have access to digital devices, we don't have all the information that we need to make the best judgment as to how the case should be handled" Other district attorneys throughout the country have had alarmingly similar experiences with iPhones running the current operating system. For example, last year the Harris County (Texas) District Attorney?s Of?ce was unable to search 4 See The Tightrope: Balancing Americans Security and Privacy: Hearing Before the H. Judiciary Comm, 1 14th Cong. 6 (2016) (written testimony of Cyrus R. Vance, Jr., NY. County Dist. Attorney) (?Vance Hearing Testimony?), at 6. 5 NPR, It ?5 Not Just The iPhone Law Enforcement Wants To Unlock, Feb. 21, 2016, enforcement-wants-to?unlock (last visited Feb. 25, 2016). 5 BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM 16-10-SP Case. ll 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 9 of 18 Page ID #:624 more than 100 (and therefore inaccessible) Apple devices from cases to date, including human traf?cking, violent street crimes, and sexual assaults. In 2016, the number of inaccessible Apple devices for that of?ce already numbers eight to ten per month. Similarly, in January and February of this year, the Cook County (Chicago) State Attorney?s of?ce has received 30 devices it could not access, and the Connecticut Division of Scienti?c Services has encountered 46 Apple devices in criminal cases, including those involving child pornography.6 Actual, real?world cases provide a window into the types of cases at stake for Amici: 0 Homicide (conviction of guilty): People v. Hayes7: The victim was ?lming a video using his iPhone when he was shot and killed by the defendant. Because the iPhone was not passcode-locked, the video, which captured the shooting, was recovered and admitted into evidence at trial. The defendant was convicted of murder and sentenced to 35 years to life.8 Homicide (exoneration of innocent): People v. Rosariogz A detective obtained a search warrant and an unlock order for certain iPhones found at the scene of a homicide. He sent the phones to 6 See Vance Hearing Testimony at 6-7. 7 Indictment Number 4451/12. 8 YORK COUNTY DISTRICT OFFICE, REPORT OF THE MANHATTAN DISTRICT OFFICE ON SMARTPHONE AND PUBLIC SAFETY 9 (Nov. 18, 2015), 1 1 .1 8.15%20Report%200n%20Smartpho (the Report?). 9 Indictment Number 1859/10. BRIEF OF AMICI CURIAE FLEOA. APA Case 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 10 of 18 Page ID #:625 1 Apple, which assisted in extracting data from them. The phone data 2 demonstrated inaccuracies in what investigators initially thought to 3 be the timeline of events, and demonstrated that a particular suspect 4 was not, in fact, involved in the murder. A phone number stored in 5 one of the iPhones was eventually linked to another individual, who 6 later confessed and pled guilty to the killing. He is currently serving 7 a sentence of 17 1/2 years? imprisonment.10 8 0 Child Pornography: People v. Hfijji?: The defendant was arrested 9 after telling a taxi driver about his interest in having sex with children 10 and showing the driver a child pornography image. Upon searching I the defendant?s iPhone pursuant to a search warrant, investigators l2 discovered a large number of child pornography images. The 13 defendant was convicted of Promoting a Sexual Performance by a 14 Child.12 15 0 Sex Traf?cking: People v. Brown13 The defendant directed a sex 16 traf?cking operation involving at least four women, using physical l7 violence, threats of force, and manipulation to coerce 18 the women to engage in prostitution. Evidence recovered from 19 defendant?s electronic devices contained photographs showing 20 him posing his victims for online prostitution advertisements and 21 showing that he had "branded" multiple women with his nickname; 22 23 Report at 11. 24 Supreme Court Information Number 3650/15. 25 26 12 NY Report at 9-10. 27 '3 Indictment Numbers 865/12, 3908/12, and 3338/13. 28 7 BRIEF OF CURIAE FLEOA, APA, AND NSA ED No. CM 16-10-SP Case Document 33 Filed 03/03/16 Page 11 of 18 Page ID #:626 and text messages between him and several victims con?rming that he had engaged in acts of violence against the testifying witness and others. The defendant was convicted of multiple counts of sex traf?cking and promoting prostitution and was sentenced to 10-20 years in prison.14 0 Cybercrime and Identity Theft: People v. Jacas er [5 and People v. Brahms era/.16: An iPhone was recovered from a waiter who was arrested for stealing more than 20 customers? credit card numbers by surreptitiously swiping the credit cards through a card reader that stored the credit card number and other data. When the phone was searched pursuant to a warrant, law enforcement of?cials discovered text messages between the waiter and other members of the group regarding the rings crimes. Based in large part on information obtained from the phone, investigators were able to obtain an eavesdropping warrant, and ultimately arrested a 29-member identity theft ring, including employees of high?end restaurants who stole credit card numbers, shoppers who made purchases using counterfeit credit cards containing the stolen credit card numbers, and managers who oversaw the operation. The group stole 100 American Express credit card numbers and property worth over $1,000,000. All ofthe defendants pled guilty, and more than $1 ,000,000 in cash and '4 NY Report at 9. 15 Indictment Number 42/12. 16 Indictment Number 5151/11. 8 BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM 16-IO-SP Case 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 12 of 18 Page ID #:627 1 merchandise was seized and forfeited.17 2 0 Unlawful Surveillance: People v. Len/tam: The defendant was 3 arrested for unlawful surveillance after a police officer observed the 4 defendant using his phone to film up women?s skirts 5 ?upskirting?). The defendant consented to a search of his phone, but 6 the passcode he provided did not work. Investigators obtained a 7 search warrant and unlock order for the phone. The phone was sent 8 to Apple, Apple extracted data from the phone, and the phone and 9 data were returned to the prosecutor. Two ?upskirting? videos were 10 found on the phone, both ?lmed on the date of the defendant?s arrest. 1 1 Following the trial, at which both videos were entered into evidence, 12 the defendant was convicted as charged, of two counts of unlawful 13 surveillance.lg 14 And in one current investigation in Louisiana, a Iocked iPhone?s text messages 15 and other information on the device may hold the only clues to the murder of a 16 pregnant woman gunned down at the front door of her home.20 These examples, 17 and many more, prove just how essential evidence recovered from iPhones can 18 be.? 19 20 ?7 NY Report at10-11. ?8 Indictment Number 41 17/13. 23 Report at 11. 24 20 See Peter Holley, A Locked iPhone May Be the Only Thing Standing Between 25 Police and This Woman ?5 Killer, Wash. Post, Feb. 26, 2016, available at 26 news/ post-nation/ wp/ 20 1 6/ 02/ 26/ a-locked? 2' Amici have additional specific, law-enforcement sensitive examples which it 9 BRIEF 0F AMICI CURIAE FLEOA, APA, AND NSA ED No. CM 16-10-SP 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 13 of 18 Page ID #:628 Of course, Apple?s decisions also hamper crime prevention. Data retrieved from a cell phone after the November 2015 Paris terrorist attacks on the Bataclan concert hall, where 89 people were killed, reportedly allowed French law enforcement of?cials to track down the alleged ringleader, who later died in a police raid.22 This individual was in the process of planning yet another attack in Europe. And lest there be any doubt about the ?value-add? for criminals by Apple?s recent engineering decisions and present litigation posture, A mici are even aware of jailhouse statements by criminals about how the new is a helpful ?feature? for planning and committing crimes. For example, in 2015, the New York Department ofCorrections intercepted a phone call between an inmate and a friend about Apple?s new, impregnable operating system, during which the inmate stated: ?Ifour phone is running on the 105 8 software. they can 't open my phone. That might be another giftfrom God.?23 In fact, Amici are aware ofnumerous instances in which criminals who previously used one time, so-called ?throwaway? or ?burner? phones, have now switched to the new iPhones as the ?device-of-choice" for their criminal wrongdoing. Troublingly, Apple even advertises and promotes its alleged inability to help law enforcement search these devices.24 does not wish to place in the public domain. Should the Court, however, desire this information, Amici will make it available. 22 Lori Hinnant Karl Ritter, Discarded Cell Phone Led to Paris Attacks Ringleader, Associated Press, Nov. 19, 2015, available at 84fe4802fd76de903 d4bb/french?leader- 23 NY Report at 12 (emphasis added). 24 Apple?s website states, ?On devices running 8 and later versions, your personal data is placed under the protection of your passcode. For all devices 10 BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM Case p5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 14 of 18 Page ID #:629 To be sure, Apple has greatly assisted law enforcement in the past, helping officers to unlock the very phones it is now stating it would offend privacy to help search. This assistance has been critical in a number of law enforcement cases, both to prosecute criminals and to exonerate the innocent. In this case, law enforcement has no alternate means of obtaining the information they are seeking25 and the iPhone used by the Terrorist may well be as critical to the resolution of this case as the devices were in the cases described above. In sum, it is clear that Apple?s refusal to provide reasonable assistance to law enforcement has real world, on?the?ground implications for federal and state law enforcement officers as they do their daily jobs as well as for the public they are sworn to protect. In many instances, this assistance is critical to whether or not law enforcement can bring justice and closure to victims? families and, in cases such as this one, thwart everyday crime and Violence as well as the ever?growing threat of terrorism across the globe. running 8 and later versions, Apple will not perform data extractions in response to government search warrants because the files to be extracted are protected by an key that is tied to the user?s passcode, which Apple does not possess.? Apple Inc., Privacy Government Information Requests Apple, (last visited Feb. 29, 2016). 25 Government?s Motion to Compel at 6. It bears noting that although critics of the Govemment?s position here state that law enforcement should simply rely on data that can be obtained on iCloud, as one DA has stated, even when criminals choose to back-up their data on the cloud (and in most cases they do not), data on an iPhone will not be backed up unless the iPhone is connected to Wifl. See Vance Hearing Testimony at 4. In this particular case, there are indications that the iCloud account had not been backed up since October 19, 2015. Moreover, Apple itself has stated that it cannot provide data that has been deleted from an iCloud account. Id. 11 BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED N0. CM 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 15 of 18 Page ID #:630 II. A RULING IN FAVOR OF APPLE HERE WILL HAVE A CHILLING EFFECT ON PUBLIC ASSISTANCE TO LAW ENFORCEMENT Justice Cardozo, in a 1928 decision while he was still a state court judge, stated: in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.? Babington v. Yellow Taxi Corp, 164 NE. 726, 727 (NY. 1928). Almost 50 years later, Justice White echoed Cardozo?s words in the Supreme Court?s landmark decision, United States v. New York Telephone Co., recognizing that ?citizens have a duty to assist in enforcement of the laws.? 434 U.S. 159, 175 n.24 (1977) (emphasis added); see also Roviaro v. United States, 353 U.S. 53, 59 (1957) (recognizing the historic obligation of citizens to assist law enforcement and to communicate their knowledge of criminal activity to law enforcement of?cials); In re Quarles and Butler, 158 U.S. 532, 535 (1895) (recognizing the duty of citizens ?to assist in prosecuting, and securing the punishment of, any breach of the peace of the United States?). Indeed, as one state supreme court recognized: The basic concept that every citizen can be compelled to assist in the pursuit or apprehension of suspected criminals has ancient Saxon origins, predating the Norman Conquest . . . . As the responsibility for keeping the peace shifted, over the centuries, to sheriffs, constables, and eventually to trained professional police departments, the power of those law enforcement of?cials to command the assistance of citizens was recognized both in statutes and in the common law. State v. Floyd, 584 A.2d 157, 1166 (Conn. 1991) (upholding state statute requiring citizens to provide reasonable assistance to law enforcement) (internal citations omitted) (footnotes omitted).26 26 See also Cal. Penal Code 150 (making it an offense to ?neglect[] or refuse[] to join the posse comitatus or power of the county, by neglecting or refusing to aid 12 BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM Case 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 16 of 18 Page ID #:631 The reasons supporting this venerable principle continue to be true today. Especially in this digital age, it is now critical for public safety that technology companies -- and the citizens that manage them cooperate with law enforcement. As the cases above recognize, this is not the ?rst, nor will it be the last, time that law enforcement enlists the assistance of citizen-managers of corporations to help them ensure that the law, the bedrock of our society, is followed and that our of?cers have the tools and information necessary to enforce that law, prevent crime and protect the citizenry. In New York Telephone Co., the Supreme Court used the authority of the All Writs Act, 28 U.S.C. 1651(a), to order the phone company to do what it was plainly able to do to assist the FBI in using its facilities and equipment to apprehend a group suspected of illegal gambling. See 434 US. at 172, 174. 27 and assist in taking or arresting any person against whom there may be issued any process, or by neglecting to aid and assist in retaking any person who, after being arrested or con?ned, may have escaped from arrest or imprisonment, or by neglecting or refusing to aid and assist in preventing any breach of the peace, or the commission of any criminal offense, being thereto lawfully required? to do so by a law enforcement of?cer or a judge). 27 It bears noting that the request here is even less intrusive than was the case in New York Telephone Co. Here, the data at issue is ?at rest? -- static data that exists on a phone whose owner is aware and supportive of law enforcement?s efforts to retrieve this data. In New York Telephone Co., the data that was to be accessed was wiretap data belonging to a group of illegal gamblers who were unaware that the most private details of their phone conversations were being intercepted in real time by law enforcement. Moreover, even if it were true (which it is not, see Government?s Motion to Compel, supra note 2) that this particular request implicates the Fourth Amendment, it is an integral part of our justice system that law enforcement, with appropriate authority in the form of a search warrant or court order and under court supervision, may intrude upon people?s privacy. For example, with court- authorized search warrants, law enforcement of?cers are able to enter people?s BRIEF OF AMICI CURIAE FLEOA, APACase Document 33 Filed 03/03/16 Page 17 of 18 Page ID #:632 Today, this Court has used this same statute to order Apple to do what it is plainly able to do to assist law enforcement in unlocking a cell phone used by the Terrorist where permission to unlock the phone has already been granted by the phone?s owner (the San Bernardino County Department of Health, the Terrorist?s employer).28 In short, law enforcement?s request, and this Court?s order, is neither new nor novel. What is new is Apple?s refusal to comply with this reasonable, court- ordered request for assistance from law enforcement of?cials. Amici are concerned that were Apple to prevail in this case, the public at large may question why they should be called upon to cooperate with law enforcement. In countless ways, knowable and unknowable, this will hamper Amici ?s ability to detect, deter, and punish crime. CONCLUSION Amici agree with the Parties that this is an important case. It implicates privacy. It implicates security. For many years, Apple has provided crucial and commendable assistance to law enforcement. It has been a valuable partner to Amici in case a?er case. Apple has changed course in a single but a crucial -- way. It has created technical impediments and has refused to provide assistance which it plainly can to Amici?s execution of a court-ordered search. That it has done so in a case involving ISIS-inspired domestic terrorism is disheartening. If bedrooms to search for contraband; collect health records from medical of?ces; and even, under some circumstances, search a criminal suspect?s attomey?s of?ce. All implicate privacy and it is hardly self-evident as to why a search of an iPhone is somehow ?special,? as Apple seems to contend. 28 Apple has categorically stated that this Court is ?a forum ill?suited to address? the issues in this case, and that the government should instead be seeking to amend existing legislation. See Apple?s Opposition at 2. This is not the law. See Government?s Motion to Compel at 21-25. 14 BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM Case 5:16-cm-00010-SP Document 33 Filed 03/03/16 Page 18 of 18 Page ID #:633 1 upheld by the Court, however, the effects of its refusal will, for countless 2 Americans, be truly devastating. 3 4 DATED: March 2, 2016 ASSOCIATION OF PROSECUTING 5 ATTORNEYS, INC. 6 7 Esp/g3 David LaBahn 8 DEVORE DEMARCO LLP 9 Joseph DeMarco Urvash1 Sen 10 Attorne for Amicz? Curiae 11 edera Law Enforcement O?icers Association, the Association of 12 Prosecutin Attorneys, Inc. and the 13 National erif?s ?Association BRIEF OF AMICI CURIAE FLEOA, APA, AND NSA ED No. CM