MEMORANDUM OF POINTS AND AUTHORITIES
This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe. The government demands that Apple create a back door to defeat the encryption on the iPhone, making its users' most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance. The All Writs Act, first enacted in 1789 and on which the government bases its entire case, "does not give the district court a roving commission" to conscript and commandeer Apple in this manner. Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). In fact, no court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it.
Since the dawn of the computer age, there have been malicious people dedicated to breaching security and stealing stored personal information. Indeed, the government itself falls victim to hackers, cyber-criminals, and foreign agents on a regular basis, most famously when foreign hackers breached Office of Personnel Management databases and gained access to personnel records, affecting over 22 million current and former federal workers and family members. In the face of this daily siege, Apple is dedicated to enhancing the security of its devices, so that when customers use an iPhone, they can feel confident that their most private personal information—financial records and credit card information, health information, location data, calendars, personal and political beliefs, family photographs, information about their children will be safe and secure. To this end, Apple uses encryption to protect its customers from cyber-attack and works hard to improve security with every software release because the threats are becoming more frequent and sophisticated. Beginning with iOS 8, Apple added additional security features that incorporate the passcode into the encryption system. It is these protections that the government now seeks to roll back by judicial decree.
There are two important and legitimate interests in this case: the needs of law enforcement and the privacy and personal safety interests of the public. In furtherance of its law enforcement interests, the government had the opportunity to seek amendments to existing law, to ask Congress to adopt the position it urges here. But rather than pursue new legislation, the government backed away from Congress and turned to the courts, a forum ill-suited to address the myriad competing interests, potential ramifications, and unintended consequences presented by the government's unprecedented demand. And more importantly, by invoking "terrorism" and moving ex parte behind closed courtroom doors, the government sought to cut off debate and circumvent thoughtful analysis.
The order demanded by the government compels Apple to create a new operating system—effectively a "back door" to the iPhone—that Apple believes is too dangerous to build. Specifically, the government would force Apple to create new software with functions to remove security features and add a new capability to the operating system to attack iPhone encryption, allowing a passcode to be input electronically. This would make it easier to unlock the iPhone by "brute force," trying thousands or millions of passcode combinations with the speed of a modern computer. In short, the government wants to compel Apple to create a crippled and insecure product. Once the process is created, it provides an avenue for criminals and foreign agents to access millions of iPhones. And once developed for our government, it is only a matter of time before foreign governments demand the same tool.
The government says: "Just this once" and "Just this phone." But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts. . And as news of this Court's order broke last week, state and local officials publicly declared their intent to use the proposed operating system to open hundreds of other seized devices—in cases having nothing to do with terrorism. . If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent. Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote. As Tim Cook, Apple's CEO, recently noted: "Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks—from restaurants and banks to stores and homes. No reasonable person would find that acceptable." Declaration of Nicola T. Hanna ("Hanna Decl."), Ex. D [Apple Inc., A Message to Our Customers (Feb. 16, 2016)].
Despite the context of this particular action, no legal principle would limit the use of this technology to domestic terrorism cases—but even if such limitations could be imposed, it would only drive our adversaries further underground, using encryption technology made by foreign companies that cannot be conscripted into U.S. government service —leaving law-abiding individuals shouldering all of the burdens on liberty, without any offsetting benefit to public safety. Indeed, the FBI's repeated warnings that criminals and terrorists are able to "go dark" behind end-to-end encryption methods proves this very point. See Hanna Decl. Ex. F [FBI, Operational Technology, Going Dark Issue (last visited Feb. 23, 2016) ("FBI, Going Dark")].
Finally, given the government's boundless interpretation of the All Writs Act, it is hard to conceive of any limits on the orders the government could obtain in the future. For example, if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone's user? Nothing.
As FBI Director James Comey expressly recognized:
Democracies resolve such tensions through robust debate. . . . It may be that, as a people, we decide the benefits [of strong encryption] outweigh the costs and that there is no sensible, technically feasible way to optimize privacy and safety in this particular context, or that public safety folks will be able to do their job well enough in the world of universal strong encryption. Those are decisions Americans should make, but I think part of my job is [to] make sure the debate is informed by a reasonable understanding of the costs.
Hanna Decl. Ex. G [James Comey, Encryption, Public Safety, and "GoingDark," Lawfare (July 6, 2015, 10:38 AM) ("Comey, Going Dark")]; see also Hanna Decl. Ex. H [James Comey, We Could Not Look the Survivors in the Eye if We Did Not Follow This Lead, Lawfare (Feb. 21, 2016, 9:03 PM) ("Comey, Follow This Lead")] (reiterating that the tension between national security and individual safety and privacy "should not be resolved by the FBI, which investigates for a living[, but rather] . . . by the American people . . . ."). The government, by seeking an order mandating that Apple create software to destabilize the security of the iPhone and the law-abiding citizens who use it to store data touching on every facet of their private lives, is not acting to inform or contribute to the debate; it is seeking to avoid it.
Apple strongly supports, and will continue to support, the efforts of law enforcement in pursuing justice against terrorists and other criminals—just as it has in this case and many others. But the unprecedented order requested by the government finds no support in the law and would violate the Constitution. Such an order would inflict significant harm—to civil liberties, society, and national security—and would preempt decisions that should be left to the will of the people through laws passed by Congress and signed by the President. Accordingly, the Court should vacate the order and deny the government's motion to compel.
II. BACKGROUND A. Apple's Industry-Leading Device Security.
Apple is committed to data security. Encryption provides Apple with the strongest means available to ensure the safety and privacy of its customers against threats known and unknown. For several years, iPhones have featured hardware- and
software-based encryption of their password-protected contents. Declaration of Erik Neuenschwander ("Neuenschwander Decl.") f 8. These protections safeguard the encryption keys on the device with a passcode designated by the user during setup. Id. f 9. This passcode immediately becomes entangled with the iPhone's Unique ID ("UID"), which is permanently assigned to that one device during the manufacturing process. Id. f 13. The iPhone's UID is neither accessible to other parts of the operating system nor known to Apple. See generally Hanna Decl. Ex. K [Apple Inc., iOS Security: iOS 9.0 or later (September 2015)]. These protections are designed to prevent anyone without the passcode from accessing encrypted data on iPhones. Neuenschwander Decl. f 8.
Cyber-attackers intent on gaining unauthorized access to a device could break a user-created passcode, if given enough chances to guess and the ability to test passwords rapidly by automated means. To prevent such "brute-force" attempts to determine the passcode, iPhones running iOS 8 and higher include a variety of safeguards. Id. f 10. For one, Apple uses a "large iteration count" to slow attempts to access an iPhone, ensuring that it would take years to try all combinations of a six- character alphanumeric passcode. Id. f 11. In addition, Apple imposes escalating time delays after the entry of each invalid passcode. Id. f 12. Finally, Apple also includes a setting that—if activated—automatically deletes encrypted data after ten consecutive incorrect attempts to enter the passcode. Id. This combination of security features protects users from attackers or if, for example, the user loses the device.
B. The Government Abandoned Efforts To Obtain Legal Authority For Mandated Back Doors.
Some in the law enforcement community have disparaged the security improvements by Apple and others, describing them as creating a "going dark" problem in which law enforcement may possess the "legal authority to intercept and access communications and information pursuant to court orders" but lack the "technical ability to carry out those orders because of a fundamental shift in communications services and technologies." As a result, some officials have advanced the view that companies should be required to maintain access to user communications and data and provide that information to law enforcement upon satisfaction of applicable legal requirements. This would give the government, in effect, a back door to otherwise encrypted communications—which would be precisely the result of the government's position in this case.
(Feb. 17, 2016)]; cf. Hanna Decl. Ex. J [Damian Paletta How the U.S. Fights Encryption—and Also Helps Develop It, Wall St. J. (Feb. 22, 2016)] (describing funding by U.S. government of stronger encryption technologies).
Apple and other technology companies, supported by leading security experts, have disagreed with law enforcement's position, observing that any back door enabling government officials to obtain encrypted data would also create a vulnerability that could be exploited by criminals and foreign agents, weakening critical security protections and creating new and unforeseen access to private information. For these reasons, Apple and others have strongly opposed efforts to require companies to enable the government to obtain encrypted information, arguing that this would compromise the security offered to its hundreds of millions of law-abiding customers in order to weaken security for the few who may pose a threat.
As leading former national security officials have made clear, Apple's "resistance to building in a back door" in whatever form it may take is well-justified, because "the greater public good is a secure communications infrastructure protected by ubiquitous encryption at the device, server and enterprise level without building in means for government monitoring."
In recent years, however, the government, led by the Department of Justice, has considered legislative proposals that would have mandated such a back door. Those proposals sought to significantly expand the reach of the Communications Assistance for Law Enforcement Act ("CALEA"), 47 U.S.C. § 1001 et seq., in which Congress defined the circumstances under which private companies must assist law enforcement in executing authorized electronic surveillance and the nature of—and limits on—the assistance such companies must provide. In addressing the twin needs of law enforcement and privacy, Congress, through CALEA, specified when a company has an obligation to assist the government with decryption of communications, and made clear that a company has no obligation to do so where, as here, the company does not retain a copy of the decryption key. 47 U.S.C. § 1002(b)(3). Congress, keenly aware of and focusing on the specific area of dispute here, thus opted not to provide authority to compel companies like Apple to assist law enforcement with respect to data stored on a smartphone they designed and manufactured.
The government's proposed changes to CALEA would have dramatically expanded the law's scope by mandating that companies install back doors into their products to ensure that authorities can access encrypted data when authorized to do so. In the face of this proposal—commonly referred to as "CALEA II"—leading technology companies, including Apple, as well as public interest organizations like the ACLU and Human Rights Watch, urged President Obama to "reject any proposal that U.S. companies deliberately weaken the security of their products . . . [and] instead focus on developing policies that will promote rather than undermine the wide adoption of strong encryption technology."
The Executive Branch ultimately decided not to pursue CALEA II, and Congress has left CALEA untouched, meaning that Congress never granted the authority the government now asserts. Moreover, members of Congress have recently introduced three pieces of legislation that would affirmatively prohibit the government from forcing private companies like Apple to compromise data security. On October 8, 2015, FBI Director Comey confirmed that the Obama Administration would not seek passage of CALEA II at that time. Instead, Director Comey expressed his view that the "going dark" debate raises issues that "to a democracy should be very, very concerning" and therefore the issue is "worthy of a larger public conversation." President Obama has also remarked that it is "useful to have civil libertarians and others tapping us on the shoulder in the midst of this process and reminding us that there are values at stake as well," noting further that he "welcome[s] that kind of debate." As the President has recognized, these issues are part of "a public conversation that we should end up having."
C. Apple's Substantial Assistance In The Government's Investigation
Apple was shocked and saddened by the mindless savagery of the December 2, 2015 terrorist attack in San Bernardino. In the days following the attack, the FBI approached Apple for help in its investigation. Apple responded immediately, and devoted substantial resources on a 24/7 basis to support the government's investigation of this heinous crime. Declaration of Lisa Olle ("Olle Decl.") ^ 5-9.
Apple promptly provided all data that it possessed relating to the attackers' accounts and that the FBI formally requested via multiple forms of legal process, in keeping with Apple's commitment to comply with all legally valid subpoenas and search warrants that the company receives. Id. Additionally, Apple has furnished valuable informal assistance to the government's investigation—participating in teleconferences, providing technical assistance, answering questions from the FBI, and suggesting potential alternatives for the government to attempt to obtain data from the iPhone at issue. Id. f 6.
Unfortunately, the FBI, without consulting Apple or reviewing its public guidance regarding iOS, changed the iCloud password associated with one of the attacker's accounts, foreclosing the possibility of the phone initiating an automatic iCloud back-up of its data to a known Wi-Fi network, see Hanna Decl. Ex. X [Apple Inc., iCloud: Back up your iOS device to iCloud], which could have obviated the need to unlock the phone and thus for the extraordinary order the government now seeks. Had the FBI consulted Apple first, this litigation may not have been necessary.
D. The Government's Ex Parte Application Under The All Writs Act, And This Court's Order
On February 16, 2016, the government filed an ex parte application and proposed order asking the Court to compel Apple to assist in the government's investigation under the authority of the All Writs Act, codified at 28 U.S.C. § 1651.
With no opposition or other perspectives to consider, the Court granted the government's request and signed the government's proposed order, thereby compelling Apple to create new software that would allow the government to hack into an iPhone 5c used by one of the attackers. Order Compelling Apple Inc. to Assist Agents in Search, In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, Cal. License Plate 35KGD203, No. ED 15- 0451M (Feb. 16, 2016), Dkt. at 19 (the "Order").
The Order directs Apple to provide "reasonable technical assistance to assist law enforcement agents in obtaining access to the data" on the device. Id. | 1. The Order further defines this "reasonable technical assistance" to include creating custom software that can be loaded on the iPhone to accomplish three goals: (1) bypass or disable the iPhone's "auto-erase" function, designed to protect against efforts to obtain unauthorized access to the device's encrypted contents by deleting encrypted data after ten unsuccessful attempts to enter the iPhone's passcode, (2) enable the FBI to electronically submit passcodes to the device for testing, bypassing the requirement that passcodes be manually entered, and (3) remove any time delays between entering incorrect passcodes. Id. | 2. Because the government proceeded ex parte, Apple had no opportunity to weigh in on whether such assistance was "reasonable," and thus the government's request was assumed to be.
The software envisioned by the government simply does not exist today. Thus, at bottom, the Order would compel Apple to create a new version of the iPhone operating system designed to defeat the critical security features noted previously for the specific purpose of accessing the device's contents in unencrypted form—in other words, to write new software to create a back door to the device's encrypted data.
E. The Resources And Effort Required To Develop The Software Demanded By The Government
The compromised operating system that the government demands would require significant resources and effort to develop. Although it is difficult to estimate, because it has never been done before, the design, creation, validation, and deployment of the software likely would necessitate six to ten Apple engineers and employees dedicating a very substantial portion of their time for a minimum of two weeks, and likely as many as four weeks. Neuenschwander Decl. f 22. Members of the team would include engineers from Apple's core operating system group, a quality assurance engineer, a project manager, and either a document writer or a tool writer. Id.
No operating system currently exists that can accomplish what the government wants, and any effort to create one will require that Apple write new code, not just disable existing code functionality. Id. f 24-25. Rather, Apple will need to design and implement untested functionality in order to allow the capability to enter passcodes into the device electronically in the manner that the government describes. Id. f 24. In addition, Apple would need to either develop and prepare detailed documentation for the above protocol to enable the FBI to build a brute-force tool that is able to interface with the device to input passcode attempts, or design, develop and prepare documentation for such a tool itself. Id. f 25. Further, if the tool is utilized remotely (rather than at a secure Apple facility), Apple will also have to develop procedures to encrypt, validate, and input into the device communications from the FBI. Id. This entire development process would need to be logged and recorded in case Apple's methodology is ever questioned, for example in court by a defense lawyer for anyone charged in relation to the crime. Id. f 28.
Once created, the operating system would need to go through Apple's quality assurance and security testing process. Id. f 29. Apple's software ecosystem is incredibly complicated, and changing one feature of an operating system often has ancillary or unanticipated consequences. Id. f 30. Thus, quality assurance and security testing would require that the new operating system be tested on multiple devices and validated before being deployed. Id. Apple would have to undertake additional testing efforts to confirm and validate that running this newly developed operating system to bypass the device's security features will not inadvertently destroy or alter any user data. Id. | 31. To the extent problems are identified (which is almost always the case), solutions would need to be developed and re-coded, and testing would begin anew. Id. | 32. As with the development process, the entire quality assurance and security testing process would need to be logged, recorded, and preserved. Id. | 33. Once the new custom operating system is created and validated, it would need to be deployed on to the subject device, which would need to be done at an Apple facility. Id. ^ 34-35. And if the new operating system has to be destroyed and recreated each time a new order is issued, the burden will multiply. Id. ^ 44-45.
A. The All Writs Act Does Not Provide A Basis To Conscript Apple To Create Software Enabling The Government To Hack Into iPhones.
The All Writs Act (or the "Act") does not provide the judiciary with the boundless and unbridled power the government asks this Court to exercise. The Act is intended to enable the federal courts to fill in gaps in the law so they can exercise the authority they already possess by virtue of the express powers granted to them by the Constitution and Congress; it does not grant the courts free-wheeling authority to change the substantive law, resolve policy disputes, or exercise new powers that Congress has not afforded them. Accordingly, the Ninth Circuit has squarely rejected the notion that "the district court has such wide-ranging inherent powers that it can impose a duty on a private party when Congress has failed to impose one. To so rule would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction." Plum Creek, 608 F.2d at 1290 (emphasis added).
Congress has never authorized judges to compel innocent third parties to provide decryption services to the FBI. Indeed, Congress has expressly withheld that authority in other contexts, and this issue is currently the subject of a raging national policy debate among members of Congress, the President, the FBI Director, and state and local prosecutors. Moreover, federal courts themselves have never recognized an inherent authority to order non-parties to become de facto government agents in ongoing criminal investigations. Because the Order is not grounded in any duly enacted rule or statute, and goes well beyond the very limited powers afforded by Article III of the Constitution and the All Writs Act, it must be vacated.
1. The All Writs Act Does Not Grant Authority To Compel Assistance Where Congress Has Considered But Chosen Not To Confer Such Authority.
The authority the government seeks here cannot be justified under the All Writs Act because law enforcement assistance by technology providers is covered by existing laws that specifically omit providers like Apple from their scope. The All Writs Act authorizes courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law," 28 U.S.C. § 1651(a), but as the Supreme Court has held, it "does not authorize [courts] to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate," Pa. Bureau of Corr. v. U.S. Marshals Serv, 474 U.S. 34, 38, 43 (1985) (holding that the Act did not confer power on the district court to compel non- custodians to bear the expense of producing the prisoner-witnesses); see also In the Matter of an Application of U.S. of Am. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526, 578 (D. Md. 2011) (holding that the Act does not authorize an "end run around constitutional and statutory law"). The Ninth Circuit likewise has emphasized that the "All Writs Act is not a grant of plenary power to federal courts. Rather, it is designed to aid the courts in the exercise of their jurisdiction." Plum Creek, 608 F.2d at 1289 (holding that the Act "does not give the district court a roving commission to order a party subject to an investigation to accept additional risks at the bidding" of the government); see also Ex parte Bollman, 8. U.S. 75 (1807) ("[C]ourts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.").
Thus, in another pending case in which the government seeks to compel Apple to assist in obtaining information from a drug dealer's iPhone, Magistrate Judge Orenstein issued an order stating that while the Act may be appropriately invoked "to fill in a statutory gap that Congress has failed to consider," it cannot be used to grant the government authority "Congress chose not to confer." In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court ("In re Order"), No. 15-MC-1902, 2015 WL 5920207, at *2 (E.D.N.Y. Oct. 9, 2015).
Congress knows how to impose a duty on third parties to facilitate the government's decryption of devices. Similarly, it knows exactly how to place limits on what the government can require of telecommunications carriers and also on manufacturers of telephone equipment and handsets. And in CALEA, Congress decided not to require electronic communication service providers, like Apple, to do what the government seeks here. Contrary to the government's contention that CALEA is inapplicable to this dispute, Congress declared via CALEA that the government cannot dictate to providers of electronic communications services or manufacturers of telecommunications equipment any specific equipment design or software configuration.
In the section of CALEA entitled "Design of features and systems configurations," 47 U.S.C. § 1002(b)(1), the statute says that it "does not authorize any law enforcement agency or officer—
(1) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.
(2) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.
Apple unquestionably serves as a provider of "electronic communications services" through the various messaging services it provides to its customers through iPhones.
See Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 901 (9th Cir. 2008). Apple also makes mobile phones. As such, CALEA does not allow a law enforcement agency to require Apple to implement any specific design of its equipment, facilities, services or system configuration. Yet, that is precisely what the government seeks here. Thus, CALEA's restrictions are directly on point.
Moreover, CALEA also intentionally excludes "information services providers," like Apple, from the scope of its mandatory assistance provisions. This exclusion precludes the government from using the All Writs Act to require Apple to do that which Congress eschewed. But even if Apple were covered by CALEA, the law does not require covered telecommunication carriers (which Apple is not) to be responsible for "decrypting, or ensuring the government's ability to decrypt, any communication encrypted by a subscriber or customer unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication." 47 U.S.C. § 1002(b)(3) (emphasis added).
Thus, here again, CALEA makes a specific choice to allow strong encryption (or any other security feature or configuration) with keys chosen by end users to be deployed, and prevents the government from mandating that such encryption schemes contain a "back door." See also H.R. Rep. 103-827(I), at 24, 1994 U.S.C.C.A.N. 3489, 3504 (emphasizing that CALEA does not "prohibit a carrier from deploying an encryption service for which it does not retain the ability to decrypt communications for law enforcement access"; "[n]or does the Committee intend this bill to be in any way a precursor to any kind of ban or limitation on encryption technology. To the contrary, [§ 1002] protects the right to use encryption.").
Similarly, outside of CALEA, Congress also knows how to require third parties to provide "technical assistance," see Wiretap Act, 18 U.S.C. § 2518(4) (providing that upon the lawful execution of a wiretap, the government can seek an order compelling a third party to furnish "all information, facilities, and technical assistance necessary to accomplish the interception"); Pen/Trap Statute, id. § 3123(b)(2) (similar), but Congress has intentionally opted not to compel third parties' assistance in retrieving stored information on devices. That Congress, confronted over the years with the contentious debate about where to draw the lines among competing security and privacy interests, made this decision, "indicates a deliberate congressional choice with which the courts should not interfere." Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 184 (1994). The Executive Branch, having considered and then declined to urge Congress to amend CALEA to enable it to compel the type of assistance demanded here, cannot seek that same authority via an ex parte application for a court order under the Act.
For the courts to use the All Writs Act to expand sub rosa the obligations imposed by CALEA as proposed by the government here would not just exceed the scope of the statute, but it would also violate the separation-of-powers doctrine. Just as the "Congress may not exercise the judicial power to revise final judgments," Clinton v. Jones, 520 U.S. 681, 699 (1997) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)), courts may not exercise the legislative power by repurposing statutes to meet the evolving needs of society, see Clark v. Martinez, 543 U.S. 371, 391 (2005) (court should "avoid inventing a statute rather than interpreting one") (citation, quotation marks, and alterations omitted); see also Alzheimer's Inst. of Am. Inc. v. Elan Corp, 2013 WL 8744216, at *2 (N.D. Cal. Jan. 31, 2013) (Congress alone has authority "to update" a "technologically antiquated" statute "to address the new and rapidly evolving era of computer and cloud-stored, processed and produced data"). Nor does Congress lose "its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution" in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588-89 (1952). Because a "decision to rearrange or rewrite [a] statute falls within the legislative, not the judicial prerogative[,]" the All Writs Act cannot possibly be deemed to grant to the courts the extraordinary power the government seeks. Xi v. INS, 298 F.3d 832, 839 (9th Cir. 2002).
If anything, whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one. See Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that a case is a nonjusticiable political question if it is impossible to decide "without an initial policy determination of a kind clearly for nonjudicial discretion"); see also Vieth v. Jubelirer, 541 U.S. 267, 277-290 (2004) (plurality opinion) (dismissing claims of political gerrymandering under the political question doctrine because there was no "judicially discoverable and manageable standard for resolving" them); Diamond v. Chakrabarty, 447 U.S. 303, 317 (1980) ("The choice [the court is] urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot."); Saldana v. Occidental Petroleum Corp., 774 F.3d 544, 552 (9th Cir. 2014) (per curiam) (affirming district court's holding that the claims were "inextricably bound to an inherently political question" and thus were "beyond the jurisdiction of our courts").
In short, a decision to "short-circuit public debate on this controversy seems fundamentally inconsistent with the proposition that such important policy issues should be determined in the first instance by the legislative branch after public debate—as opposed to having them decided by the judiciary in sealed, ex parte proceedings." In re Order, 2015 WL 5920207, at *3 n.1. Such an important decision with such widespread global repercussions goes well beyond the purview of the All Writs Act, which merely provides courts with a limited grant of ancillary authority to issue orders "in aid of their respective jurisdictions." 28 U.S.C. § 1651(a).
2. New York Telephone Co. And Its Progeny Confirm That The All Writs Act Does Not Authorize Courts To Compel The Unprecedented And Unreasonably Burdensome Conscription Of Apple That The Government Seeks.
The government relies heavily on the Supreme Court's decision in United States v. New York Telephone Co., 434 U.S. 159 (1977), to assert that the All Writs Act permits the Court to compel private third parties like Apple to assist the government in effectuating a search warrant by writing new software code that would undermine the security of its own product. The government misapplies this case.
In New York Telephone Co., the district court compelled the company to install a simple pen register device (designed to record dialed numbers) on two telephones where there was "probable cause to believe that the [c]ompany's facilities were being employed to facilitate a criminal enterprise on a continuing basis." 434 U.S. at 174. The Supreme Court held that the order was a proper writ under the Act, because it was consistent with Congress's intent to compel third parties to assist the government in the use of surveillance devices, and it satisfied a three-part test imposed by the Court.
First, the Court found that the company was not "so far removed from the underlying controversy that its assistance could not be permissibly compelled." Id. Second, the assistance sought was "meager," and as a public utility, the company did not "ha[ve] a substantial interest in not providing assistance." Id. Third, "after an exhaustive search," the FBI was unable to find a suitable location to install its own pen registers without tipping off the targets, and thus there was "no conceivable way in which the surveillance authorized by the District Court could have been successfully accomplished" without the company's meager assistance. Id. at 175. Applying these factors to this case confirms that the All Writs Act does not permit the Court to compel the unprecedented and unreasonably burdensome assistance that the government seeks.
a. Apple's Connection To The Underlying Case Is "Far Removed" And Too Attenuated To Compel Its Assistance
Nothing connects Apple to this case such that it can be drafted into government service to write software that permits the government to defeat the security features on Apple's standard operating system. Apple is a private company that does not own or possess the phone at issue, has no connection to the data that may or may not exist on the phone, and is not related in any way to the events giving rise to the investigation. This case is nothing like New York Telephone Co., where there was probable cause to believe that the phone company's own facilities were "being employed to facilitate a criminal enterprise on a continuing basis." Id. at 174.
The government relies on United States v. Hall, 583 F. Supp. 717 (E.D. Va. 1984), and In re Application of U.S. of Am. for an Order DirectingX to Provide Access- to Videotapes ("Videotapes "), 2003 WL 22053105 (D. Md. Aug. 22, 2003), but these cases involved mere requests to produce existing business records, not the compelled creation of intellectual property. In Hall, the court found that the All Writs Act permitted an order compelling a credit card company to produce the credit card records of a federal fugitive's former girlfriend, because the government had reason to believe that she was harboring and supporting the fugitive, and thus potentially using her credit card to perpetrate an ongoing crime. 583 F. Supp. at 720 (reasoning that a credit card issuer "has an interest" in a transaction "when a credit card is used for an illegal purpose even though the act itself be not illegal"). Similarly, in Videotapes, the court compelled an apartment complex to provide access to videotape surveillance footage of a hallway in the apartment to assist with executing an arrest warrant on a fugitive. 2003 WL 22053105, at *3. This case is nothing like Hall and Videotapes, where the government sought assistance effectuating an arrest warrant to halt ongoing criminal activity, since any criminal activity linked to the phone at issue here ended more than two months ago when the terrorists were killed.
Further, unlike a telecommunications monopoly, Apple is not a "highly regulated public utility with a duty to serve the public." New York Telephone Co., 434 U.S. at 174; see also Application of U.S. of Am. for an Order Authorizing an In- Progress Trace of Wire Commc'ns over Tel. Facilities ("Mountain Bell"), 616 F.2d 1122, 1132 (9th Cir. 1980) (discussing New York Telephone Co. and noting that its
ruling compelling assistance under the All Writs Act relied "[t]o a great extent . . . upon the highly regulated, public nature" of the phone company); In re Order, 2015 WL 5920207, at *4-5. Whereas public utilities have no "substantial interest in not providing assistance" to the government, 434 U.S. at 174, and "enjoy a monopoly in an essential area of communications," Mountain Bell, 616 F.2d at 1131, Apple is a private company that believes that encryption is crucial to protect the security and privacy interests of citizens who use and store their most personal data on their iPhones, "from our private conversations to our photos, our music, our notes, our calendars and contacts, our financial information and health data, even where we have been and where we are going." Hanna Decl. Ex. D at 1 [Apple Inc., A Message to Our Customers (Feb. 16, 2016)].
That Apple "designed, manufactured and sold the SUBJECT DEVICE, and wrote and owns the software that runs the phone," Memorandum of Points and Authorities in Support of Government's Ex Parte Application for Order Compelling Apple Inc. to Assist Agents in Search, In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, Cal. License Plate 35KGD203, No. ED 15-0451M (Feb. 16, 2016), Dkt. 18 at 11 (the "Ex Parte App"), is insufficient to establish the connection mandated by New York Telephone Co. The All Writs Act does not allow the government to compel a manufacturer's assistance merely because it has placed a good into the stream of commerce. Apple is no more connected to this phone than General Motors is to a company car used by a fraudster on his daily commute. Moreover, that Apple's software is "licensed, not sold," Ex Parte App. at 5, is "a total red herring," as Judge Orenstein already concluded, Hanna Decl. Ex. DD at 42:4-10 [In re Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant Issued by the Court, E.D.N.Y No. 15 MC 1902, Dkt. 19 ("October 26, 2015 Transcript")]. A licensing agreement no more connects Apple to the underlying events than a sale. The license does not permit Apple to invade or control the private data of its customers. It merely limits customers' use and redistribution of Apple's software. Indeed, the government's position has no limits and, if accepted, would eviscerate the "remoteness" factor entirely, as any company that offers products or services to consumers could be conscripted to assist with an investigation, no matter how attenuated their connection to the criminal activity. This is not, and never has been, the law.
b. The Order Requested By The Government Would Impose An Unprecedented And Oppressive Burden On Apple And Citizens Who Use The iPhone.
An order pursuant to the All Writs Act "must not  adversely affect the basic interests of the third party or  impose an undue burden." Hall, 583 F. Supp. at 719. The Order violates both requirements by conscripting Apple to develop software that does not exist and that Apple has a compelling interest in not creating. The government's request violates the first requirement—that the Act "must not adversely affect the basic interests of the third party"—because Apple has a strong interest in safeguarding its data protection systems that ensure the security of hundreds of millions of customers who depend on and store their most confidential data on their iPhones. An order compelling Apple to create software that defeats those safeguards undeniably threatens those systems and adversely affects Apple's interests and those of iPhone users around the globe. See id.
The government's request violates the second requirement—that the Act "must not . . . impose an undue burden"—because the government's unprecedented demand forces Apple to develop new software that destroys the security features that Apple has spent years building. As discussed supra in section II.E, no operating system currently exists that can accomplish what the government wants, and any effort to create one would require that Apple write new code, not just disable existing functionality. Neuenschwander Decl. ^ 23-25. Experienced Apple engineers would have to design, create, test, and validate the compromised operating system, using a hyper-secure isolation room within which to do it, and then deploy and supervise its operation by the FBI to brute force crack the phone's passcode. Id. ^ 21-43; Olle Decl. | 14. The system itself would have to be tested on multiple devices to ensure that the operating system works and does not alter any data on the device. Neuenschwander ^ 30-31. All aspects of the development and testing processes would need to be logged and recorded in case Apple's methodology is ever questioned. Id. ^ 28, 33.
Moreover, the government's flawed suggestion to delete the program and erase every trace of the activity would not lessen the burden, it would actually increase it since there are hundreds of demands to create and utilize the software waiting in the wings. Id. ^ 38-45. If Apple creates new software to open a back door, other federal and state prosecutors—and other governments and agencies—will repeatedly seek orders compelling Apple to use the software to open the back door for tens of thousands of iPhones. Indeed, Manhattan District Attorney Cyrus Vance, Jr., has made clear that the federal and state governments want access to every phone in a criminal investigation. See Hanna Decl., Ex. Z [(Cyrus R. Vance, Jr., No Smartphone Lies Beyond the Reach of a Judicial Search Warrant, N.Y. Times (Feb. 18, 2016)]; Hanna Decl. | 5 at 18:28 [Charlie Rose, Television Interview of Cyrus Vance (Feb. 18, 2016)] (Vance stating "absolutely" that he "want[s] access to all those phones that [he thinks] are crucial in a criminal proceeding"). This enormously intrusive burden—building everything up and tearing it down for each demand by law enforcement—lacks any support in the cases relied on by the government, nor do such cases exist.
The alternative—keeping and maintaining the compromised operating system and everything related to it—imposes a different but no less significant burden, i.e., forcing Apple to take on the task of unfailingly securing against disclosure or misappropriation the development and testing environments, equipment, codebase, documentation, and any other materials relating to the compromised operating system. Id. | 47. Given the millions of iPhones in use and the value of the data on them, criminals, terrorists, and hackers will no doubt view the code as a major prize and can be expected to go to considerable lengths to steal it, risking the security, safety, and privacy of customers whose lives are chronicled on their phones. Indeed, as the Supreme Court has recognized, "[t]he term 'cell phone' is itself misleading shorthand; . . . these devices are in fact minicomputers" that "could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." Riley v. California, 134 S. Ct. 2473, 2488-89 (2014) (observing that equating the "data stored on a cell phone" to "physical items" "is like saying a ride on horseback is materially indistinguishable from a flight to the moon"). By forcing Apple to write code to compromise its encryption defenses, the Order would impose substantial burdens not just on Apple, but on the public at large. And in the meantime, nimble and technologically savvy criminals will continue to use other encryption technologies, while the law-abiding public endures these threats to their security and personal liberties—an especially perverse form of unilateral disarmament in the war on terror and crime. See n.4 supra (describing ISIS's shift to more secure communication methods).
In addition, compelling Apple to create software in this case will set a dangerous precedent for conscripting Apple and other technology companies to develop technology to do the government's bidding in untold future criminal investigations. If the government can invoke the All Writs Act to compel Apple to create a special operating system that undermines important security measures on the iPhone, it could argue in future cases that the courts should compel Apple to create a version to track the location of suspects, or secretly use the iPhone's microphone and camera to record sound and video. And if it succeeds here against Apple, there is no reason why the government could not deploy its new authority to compel other innocent and unrelated third-parties to do its bidding in the name of law enforcement. For example, under the same legal theories advocated by the government here, the government could argue that it should be permitted to force citizens to do all manner of things "necessary" to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant, or requiring a journalist to plant a false story in order to help lure out a fugitive, or forcing a software company to insert malicious code in its auto- update process that makes it easier for the government to conduct court-ordered surveillance. Indeed, under the government's formulation, any party whose assistance is deemed "necessary" by the government falls within the ambit of the All Writs Act and can be compelled to do anything the government needs to effectuate a lawful court order. While these sweeping powers might be nice to have from the government's perspective, they simply are not authorized by law and would violate the Constitution.
Moreover, responding to these demands would effectively require Apple to create full-time positions in a new "hacking" department to service government requests and to develop new versions of the back door software every time iOS changes, and it would require Apple engineers to testify about this back door as government witnesses at trial. See, e.g., United States v. Cameron, 699 F.3d 621, 643¬44 (1st Cir. 2012) (holding that reports generated by an Internet provider were testimonial, and thus could not be admitted without "giving [defendant] the opportunity to cross-examine the [provider's] employees who prepared the  [r]eports"). Nothing in federal law allows the courts, at the request of prosecutors, to coercively deputize Apple and other companies to serve as a permanent arm of the government's forensics lab. Indeed, the government fails to cite any case—because none exists—to support its incorrect contention that courts have invoked the All Writs Act to conscript a company like Apple to "to write some amount of code in order to gather information in response to subpoenas or other process." Ex Parte App. at 15.
The burden imposed on Apple is thus in sharp contrast to New York Telephone Co., where the public utility was compelled to provide "meager assistance" in setting up a pen register—a step which "required minimal effort on the part of the [c]ompany and no disruption to its operations." 434 U.S. at 174-75 (noting that the company routinely employed pen registers without court order for purposes of checking billing operations and detecting fraud); see also Mountain Bell, 616 F.2d at 1132 (order compelling the phone company to use a tracing technique akin to a pen register did not impose a substantial burden because it "was extremely narrow in scope," and "prohibit[ed] any tracing technique which required active monitoring by company personnel"). The very limited orders in those cases thus "should not be read to authorize the wholesale imposition upon private, third parties of duties pursuant to search warrants." Id.
The other cases the government relies on involve similarly inconsequential burdens where third parties were asked to turn over records that were already in their possession or readily accessible, Videotapes, 2003 WL 22053105, at *3 (directing apartment complex owner to share surveillance footage "maintained in the ordinary course of business"); Hall, 583 F. Supp. at 722 (directing bank to produce credit card records), or where the third party provided minimal assistance to effect a lawful wiretap, In re Application of U.S. of Am. for an Order Directing a Provider of Commc'n Servs. to Provide Tech. Assistance to Agents of the U.S. Drug Enf't Admin., 2015 WL 5233551, at *5 (D.P.R. Aug. 27, 2015). But unlike those cases, where the government directed a third party to provide something that already existed or sought assistance with a minimal and routine service, here the government wants to compel Apple to deploy a team of engineers to write and test software code and create a new operating system that undermines the security measures it has worked so hard to establish—and then to potentially do that over and over again as other federal, state, local and foreign prosecutors make demands for the same thing.
The government's reliance on two phone "unlocking" cases is similarly misplaced. Ex Parte App. at 9 (citing United States v. Navarro, No. 13-CR-5525 (W.D. Wash. Nov. 13, 2013), ECF No. 39; In re Order Requiring [XXX], 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) ("Order Requiring [XXX]"). As an initial matter, the Navarro order is a minute order that does not contain any analysis of the All Writs Act, and it is unclear whether its limitations were ever raised or considered. The Navarro order is also distinguishable because it involved the government's request to unlock an iPhone on an older operating system that did not require the creation of any new software. Order Requiring [XXX], which was also issued without the benefit of adversarial briefing, is equally unavailing. 2014 WL 5510865, at *3 (granting ex parte application to compel a third party to bypass a lock screen on a phone to effectuate a search warrant). Although the court purported to apply New York Telephone Co., it did not analyze all of the factors set forth in that case, such as whether the All Writs Act could be used to compel third parties to hack into phones, whether the cellphone company was "too far removed" from the matter, or whether hacking into the phone adversely affected the company's interests. Rather, the court simply concluded the technical service sought was not "burdensome," akin to "punching a few buttons" or installing a pen register. 2014 WL 5510865, at *2 (internal quotation marks omitted). As Apple has explained, the technical assistance sought here requires vastly more than simply pressing a "few buttons."
The government has every right to reasonably involve the public in the law enforcement process. Indeed, each year Apple complies with thousands of lawful requests for data and information by law enforcement, and on many occasions has extracted data from prior versions of its operating system for the FBI's use. See Olle Decl. ^ 15-16. But compelling minimal assistance to surveil or apprehend a criminal (as in most of the cases the government cites), or demanding testimony or production of things that already exist (akin to exercising subpoena power), is vastly different, and significantly less intrusive, than conscripting a private company to create something entirely new and dangerous. There is simply no parallel or precedent for it.
c. The Government Has Not Demonstrated Apple's Assistance Was Necessary To Effectuating The Warrant.
A third party cannot be compelled to assist the government unless the government is authorized to act and the third party's participation is imperative. The order in New York Telephone Co. satisfied that requirement because the court had authorized surveillance, and "there [was] no conceivable way" to accomplish that surveillance without the company's assistance. 434 U.S. at 175 (noting that FBI had conducted "an exhaustive search" for a way to install a pen register in an undetectable location). The order compelling the phone company's assistance was therefore necessary "to prevent nullification of the court's warrant" and "to put an end to this venture." Id. at 174, 175 & n.23; see also Mountain Bell, 616 F.2d at 1129 (holding that an order compelling a third party to assist with tracing was necessary to carry out a wiretap and halt ongoing criminal activity); Mich. Bell Telephone Co. v. United States, 565 F.2d 385, 389 (6th Cir. 1977) (concluding that telephone company was "the only entity that c[ould] effectuate the order of the district court to prevent company-owned facilities from being used in violation of both state and federal laws").
Here, by contrast, the government has failed to demonstrate that the requested order was absolutely necessary to effectuate the search warrant, including that it exhausted all other avenues for recovering information. Indeed, the FBI foreclosed one such avenue when, without consulting Apple or reviewing its public guidance regarding iOS, the government changed the iCloud password associated with an attacker's account, thereby preventing the phone from initiating an automatic iCloud back-up. See supra II.C. Moreover, the government has not made any showing that it sought or received technical assistance from other federal agencies with expertise in digital forensics, which assistance might obviate the need to conscript Apple to create the back door it now seeks. See Hanna Decl. Ex. DD at 34-36 [October 26, 2015 Transcript] (Judge Orenstein asking the government "to make a representation for purposes of the All Writs Act" as to whether the "entire Government," including the "intelligence community," did or did not have the capability to decrypt an iPhone, and the government responding that "federal prosecutors don't have an obligation to consult the intelligence community in order to investigate crime"). As such, the government has not demonstrated that "there is no conceivable way" to extract data from the phone. New York Tel. Co., 434 U.S. at 174.
3. Other Cases The Government Cites Do Not Support The Type Of Compelled Action Sought Here.
The government does not cite a single case remotely approximating the demand it makes here; indeed, its cases only confirm the wild overreach of the Order.
The government relies, for example, on cases compelling a criminal defendant to take certain actions—specifically, United States v. Fricosu, 841 F. Supp. 2d 1232 (D. Colo. 2012) and United States v. Catoggio, 698 F.3d 64 (2d Cir. 2012) (per curiam)—but those cases say nothing about the propriety of compelling an innocent third party to do so. In Fricosu the government moved to require the defendant to produce the "unencrypted contents" of her laptop computer. 841 F. Supp. 2d at 1235. This order placed no undue burden on the defendant because she could access the encrypted contents on her computer, and the court preserved her Fifth Amendment rights by not compelling the password itself, which was testimonial in nature. See id. at 1236-38. By contrast, the government's request here creates an unprecedented burden on Apple and violates Apple's First Amendment rights against compelled speech, as discussed below. And unlike the compelled creation of a compromised operating system for iOS devices, the order in Fricosu merely required the defendant to hand over her own personal files, and thus posed no risk to third parties' privacy or security interests.
The government's reliance on Catoggio, which involved the seizure of defendant's property, is also inapt. Though the district court had not invoked the All Writs Act, the appellate court cited the Act in affirming the district court's order retaining a convicted defendant's property in anticipation of a restitution order. 698 F.3d at 68-69. But whereas courts have uniformly held that the Act enables a court to restrain a convicted defendant's property pending a restitution order, id. at 67, no court has ever held that the All Writs Act permits the government to conscript a private company to build software for it.
Finally, the government relies on the Ninth Circuit's decision in Plum Creek— but that case only serves to illustrate the government's vast overreach under the All Writs Act. There, the Ninth Circuit affirmed the district court's order declining OSHA's request to compel an employer to rescind a company policy forbidding employees from wearing OSHA air-quality and noise-level testing devices, so that OSHA could more efficiently investigate the company's premises. 608 F.2d at 1289¬90. The court reasoned that a government agency's interest in conducting an efficient investigation is not grounds for issuing a writ requiring a company to comply with the government's demands. Id. at 1290. This was particularly true where OSHA "c[ould] not guarantee that these devices would [not] cause" industry accidents, and the company bore the costs of those accidents. Id. at 1289 & n.4 (internal quotation marks omitted). Even though the investigation would take five times as long to complete without the use of the equipment OSHA sought to compel, the court could not compel their use absent a law requiring it. Id. at 1289 & n.6. The court held that the All Writs Act "does not give the district court a roving commission to order a party subject to an investigation to accept additional risks at the bidding of OSHA inspectors." Id. at 1289. Plum Creek thus provides no support for the government's attempt to compel Apple to create new software "when Congress has failed to impose" such a duty on Apple. Id. at 1290. Forcing Apple to write software that would create a back door to millions of iOS devices would not only "usurp the legislative function," id., but also unconstitutionally compel speech and expose Apple iPhone users to exceptional security and privacy risks.
B. The Order Would Violate The First Amendment And The Fifth Amendment's Due Process Clause.
1. The First Amendment Prohibits The Government From Compelling Apple To Create Code
The government asks this Court to command Apple to write software that will neutralize safety features that Apple has built into the iPhone in response to consumer privacy concerns. Order | 2. The code must contain a unique identifier "so that [it] would only load and execute on the SUBJECT DEVICE," and it must be "'signed' cryptographically by Apple using its own proprietary encryption methods." Ex Parte App. at 5, 7. This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment.
Under well-settled law, computer code is treated as speech within the meaning of the First Amendment. See, e.g., Universal City Studios, Inc. v. Corley, 273 F.3d 429, 449 (2d Cir. 2001); Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000); 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1099-1100 (N.D. Cal. 2004); United States v. Elcom Ltd, 203 F. Supp. 2d 1111, 1126 (N.D. Cal. 2002); Bernstein v. Dep't of State, 922 F. Supp. 1426, 1436 (N.D. Cal. 1996).
The Supreme Court has made clear that where, as here, the government seeks to compel speech, such action triggers First Amendment protections. As the Court observed in Riley v. Nat'l Fed. of the Blind of N.C., Inc., 487 U.S. 781,796 (1988), while "[t]here is certainly some difference between compelled speech and compelled silence, . . . in the context of protected speech, the difference is without constitutional significance." Compelled speech is a content-based restriction subject to exacting scrutiny, id. at 795, 797-98, and so may only be upheld if it is narrowly tailored to obtain a compelling state interest, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994).
The government cannot meet this standard here. Apple does not question the government's legitimate and worthy interest in investigating and prosecuting terrorists, but here the government has produced nothing more than speculation that this iPhone might contain potentially relevant information. Hanna Decl. Ex. H [Comey, Follow This Lead] ("Maybe the phone holds the clue to finding more terrorists. Maybe it doesn't."). It is well known that terrorists and other criminals use highly sophisticated encryption techniques and readily available software applications, making it likely that any information on the phone lies behind several other layers of non-Apple encryption. See Hanna Decl. Ex. E [Coker, Tech Savvy] (noting that the Islamic State has issued to its members a ranking of the 33 most secure communications applications, and "has urged its followers to make use of [one app's] capability to host encrypted group chats").
Even more problematically, the Court's Order discriminates on the basis of Apple's viewpoint. When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit.
See, e.g., Hanna Decl. Ex. AA [Apple Inc., Privacy, Government Information Requests]. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views. This is, in every sense of the term, viewpoint discrimination that violates the First Amendment. See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984).
Finally, the FBI itself foreclosed what would have likely been a promising and vastly narrower alternative to this unprecedented order: backing up the iPhone to iCloud. Apple has extensively cooperated and assisted law enforcement officials in the San Bernardino investigation, but the FBI inadvertently foreclosed a ready avenue by changing the passcode, which precluded the iCloud back-up option.
To avoid the serious First Amendment concerns that the government's request to compel speech presents, this Court should vacate the Order.
2. The Fifth Amendment's Due Process Clause Prohibits The Government From Compelling Apple To Create The Request Code
In addition to violating the First Amendment, the government's requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government's bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party's core principles, violates Apple's substantive due process right to be free from "'arbitrary deprivation of [its] liberty by government.'" Costanich v. Dep't of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) ("We have emphasized time and again that '[t]he touchstone of due process is protection of the individual against arbitrary action of government,' . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective." (citations omitted)); cf. id. at 850 ("Rules of due process are not . . . subject to mechanical application in unfamiliar territory.").
Apple has great respect for the professionals at the Department of Justice and FBI, and it believes their intentions are good. Moreover, Apple has profound sympathy for the innocent victims of the attack and their families. However, while the government's desire to maximize security is laudable, the decision of how to do so while also protecting other vital interests, such as personal safety and privacy, is for American citizens to make through the democratic process. Indeed, examples abound of society opting not to pay the price for increased and more efficient enforcement of criminal laws. For example, society does not tolerate violations of the Fifth Amendment privilege against self-incrimination, even though more criminals would be convicted if the government could compel their confessions. Nor does society tolerate violations of the Fourth Amendment, even though the government could more easily obtain critical evidence if given free rein to conduct warrantless searches and seizures.
At every level of our legal system—from the Constitution, to our statutes, common law, rules, and even the Department of Justice's own policies —society has acted to preserve certain rights at the expense of burdening law enforcement's interest in investigating crimes and bringing criminals to justice. Society is still debating the important privacy and security issues posed by this case. The government's desire to leave no stone unturned, however well intentioned, does not authorize it to cut off debate and impose its views on society.
28 See, e.g., U.S. Const. amend. IV (limitations on searches and seizures), amend. V (limitations on charging; prohibition on compelling testimony of accused).
29 See, eg., 18 U.S.C. § 3282 (prohibition on prosecuting crimes more than five years' old), CALEA (limitations on ability to intercept communications).
30 E.g., attorney-client privilege, spousal privilege, and reporter's privilege, and priest- penitent privilege, all of which limit the government's ability to obtain evidence.
31 See, e.g., Fed. R. Evid. 404 (limitations on use of character evidence), 802 (limitations on use of hearsay).
32 See, e.g., U.S. Attorneys' Manual §§ 9-13-200 (limitations on communicating with witnesses represented by counsel), 9-13.400 (limitations on subpoenaing news media), 9-13-410 (limitations on subpoenaing attorneys), 9-13-420 (limitations on searches of attorneys' offices).