IN RE APPLE, INC. 341 - · PDF fileIN RE APPLE, INC. 343 Cite as 149 F.Supp.3d 341 (E.D.N.Y....

341IN RE APPLE, INC.Cite as 149 F.Supp.3d 341 (E.D.N.Y. 2016)

Cir.2007)). ‘‘In deciding qualified immuni-ty, courts ask whether the facts shown [i]‘make out a violation of a constitutionalright,’ and [ii] ‘whether the right at issuewas clearly established at the time of de-fendant’s alleged misconduct.’ ’’ Id. (quot-ing Pearson v. Callahan, 555 U.S. 223, 232,129 S.Ct. 808, 172 L.Ed.2d 565 (2009)).

In this case, the Defendants assert thatsummary judgment is warranted becausethe Plaintiff ‘‘has failed to identify whatstatutory or constitutional right that Crossviolated.’’ However, as is clear from theCourt’s foregoing opinion, genuine issuesof material fact exist with regard toCross’s involvement in the alleged violationof several statutory and constitutionalrights of the Plaintiff. Accordingly, thepresent record does not support a findingof qualified immunity and the motion forsummary judgment on that basis is denied.

III. Conclusion

Based on the foregoing, the Defendants’motion for summary judgment is grantedin part and denied in part.

In particular, the Court grants the mo-tion and dismisses the Plaintiff’s claimsagainst the individual Defendant BettyCross, which allege racial discrimination,retaliation, and hostile work environmentin violation of Title VII. As set forth above,that statute does not provide for individualliability.

However, the Court denies the motionfor summary judgment as it relates to thePlaintiff’s claims against Betty Crossbased on racial discrimination, retaliation,and hostile work environment under theNYSHRL, 42 U.S.C. § 1981, and 42 U.S.C.§ 1983. The Court also denies the motionas to the Plaintiff’s claim against BettyCross based on aiding and abetting dis-criminatory and retaliatory conduct underthe NYSHRL and § 1981.

In reaching this conclusion, the Courtrejects the contention that Betty Cross isentitled to qualified immunity, as a matterof law.

Further, the Court denies the Defen-dants’ motion for summary judgment as itrelates to each of the Plaintiff’s claimsagainst the Hempstead Union Free SchoolDistrict and the Hempstead Board of Edu-cation under Title VII, the NYSHRL,§ 1981, and § 1983.

It is SO ORDERED.

,

IN RE Order Requiring APPLE, INC. toAssist in the Execution of a SearchWarrant Issued by this Court.

15–MC–1902 (JO)

United States District Court,E.D. New York.

Signed February 29, 2016

Background: Government applied underAll Writs Act (AWA) for an order compel-ling smartphone manufacturer to bypasspasscode security on drug trafficking de-fendant’s device so that a search warrantcould be executed.

Holdings: The District Court, James Or-enstein, United States Magistrate Judge,held that:

(1) defendant’s guilty plea did not renderapplication moot;

(2) order would aid in court’s jurisdiction;

(3) order was necessary or appropriate inaiding court’s jurisdiction, but

(4) order was not agreeable to the usagesand principles of law.

Application denied.

342 149 FEDERAL SUPPLEMENT, 3d SERIES

1. Federal Courts O2180

Drug trafficking defendant’s guiltyplea did not render moot government’sapplication under All Writs Act (AWA) foran order compelling smartphone manufac-turer to bypass passcode security on de-fendant’s device so that government couldexecute a search warrant, where a rulingon application would resolve a live disputeabout whether manufacturer was requiredto unwillingly provide assistance govern-ment sought. 28 U.S.C.A. § 1651(a).


Federal courts have the authority toissue orders under the All Writs Act(AWA) where three requirements are sat-isfied: (1) issuance of the writ must be inaid of the issuing court’s jurisdiction; (2)the type of writ requested must be neces-sary or appropriate to provide such aid tothe issuing court’s jurisdiction; and (3) theissuance of the writ must be agreeable tothe usages and principles of law. 28U.S.C.A. § 1651(a).


If an application under the All WritsAct (AWA) meets all three requirementsfor a writ to issue, a court may issue therequested writ in the exercise of its discre-tion, but it is never required to do so. 28U.S.C.A. § 1651(a).


A court deciding whether to take dis-cretionary action under the All Writs Act(AWA) should consider three factors: (1)the closeness of the relationship betweenthe person or entity to whom the proposedwrit is directed and the matter over whichthe court has jurisdiction; (2) the reason-ableness of the burden to be imposed onthe writ’s subject; and (3) the necessity ofthe requested writ to aid the court’s juris-diction. 28 U.S.C.A. § 1651(a).

5. Searches and Seizures O142Requested order compelling smart-

phone manufacturer to bypass passcodesecurity on drug trafficking defendant’sdevice so that government could execute asearch warrant would aid in court’s juris-diction, as required for court to issue or-der under All Writs Act (AWA), eventhough warrant had expired long beforegovernment sought to compel manufactur-er’s assistance, where order would assistin executing warrant, and 14-day limit forexecuting a warrant did not bar later off-site copying or review of electronic storagemedia. 28 U.S.C.A. § 1651(a); Fed. R.Crim. P. 41(e)(2)(A)(i), 41(e)(2)(B).


phone manufacturer to bypass passcodesecurity on drug trafficking defendant’sdevice so that government could execute asearch warrant was necessary or appropri-ate in aiding court’s jurisdiction, as re-quired for court to issue order under AllWrits Act (AWA), where order would as-sist in executing warrant. 28 U.S.C.A.§ 1651(a).

7. Federal Courts O2024Unless appropriately confined by Con-

gress, under the All Writs Act (AWA), afederal court may avail itself of all auxilia-ry writs as aids in the performance of itsduties, when the use of such historic aids iscalculated in its sound judgment to achievethe ends of justice entrusted to it. 28U.S.C.A. § 1651(a).


phone manufacturer to bypass passcodesecurity on drug trafficking defendant’sdevice so that government could execute asearch warrant was not ‘‘agreeable to theusages and principles of law,’’ and, thus,such an order was not authorized by AllWrits Act (AWA), where Communications


Assistance for Law Enforcement Act (CA-LEA) did not compel private companies toprovide kind of assistance governmentsought, that omission reflected a legislativedecision to prohibit imposition of such aduty, and order sought to confer authorityCongress considered and decided not toenact. 28 U.S.C.A. § 1651(a); 47 U.S.C.A.§§ 1001-1010.

See publication Words and Phrasesfor other judicial constructions anddefinitions.

9. Federal Courts O2024The All Writs Act (AWA) cannot be

interpreted to empower courts to do some-thing that another statute already author-izes but that might have threshold re-quirements that cannot be satisfied in thecircumstances of a particular case. 28U.S.C.A. § 1651(a).

10. Federal Courts O2024A court cannot rely on the All Writs

Act (AWA) to issue an order that is explic-itly or implicitly prohibited under a federalstatute. 28 U.S.C.A. § 1651(a).

11. Federal Courts O2024A judicial order that would confer au-

thority that Congress has considered anddecided not to enact is not ‘‘agreeable tothe usages and principles of law’’ withinthe meaning of the All Writs Act (AWA).28 U.S.C.A. § 1651(a).

See publication Words and Phrasesfor other judicial constructions anddefinitions.

12. Searches and Seizures O142Even assuming All Writs Act (AWA)

authorized court to issue an order compel-ling smartphone manufacturer to bypasspasscode security on drug trafficking de-fendant’s device so that government couldexecute a search warrant, manufacturerwas too far removed from defendant’scriminal activity to have any obligation toassist in government’s investigation, as a

factor weighing against court’s exercise ofits discretionary authority to issue order,where manufacturer had no ownership in-terest in device, and although defendantlicensed from manufacturer software onwhich device ran, there was no evidencethat he used licensed software itself, asopposed to data it allowed him to store, tofacilitate his crimes. 28 U.S.C.A.§ 1651(a).

13. Searches and Seizures O142

Even assuming All Writs Act (AWA)authorized court to issue an order compel-ling smartphone manufacturer to bypasspasscode security on drug trafficking de-fendant’s device so that government couldexecute a search warrant, manufacturer’spurported ability to thwart government’sexecution of warrant did not render itsufficiently close to government’s investi-gation for court to exercise its discretion-ary authority to issue order, where manu-facturer was not preventing governmentfrom conducting its investigation, andmanufacturer did not conspire with defen-dant to make data on his device inaccessi-ble. 28 U.S.C.A. § 1651(a).


Minimum contacts is not appropriatestandard for evaluating closeness factor incourt’s decision of whether to exercise itsdiscretionary authority to issue an orderunder All Writs Act (AWA). 28 U.S.C.A.§ 1651(a).

15. Searches and Seizures O142

Even assuming All Writs Act (AWA)authorized court to issue an order compel-ling smartphone manufacturer to bypasspasscode security on drug trafficking de-fendant’s device so that government couldexecute a search warrant, such an orderwould impose an unreasonable burden onmanufacturer, as a factor weighing againstcourt’s exercise of its discretionary author-


ity to issue order, where manufacturerwas not a highly regulated public utilitywith a duty to serve public, bypassing asecurity measure manufacturer affirma-tively marketed to its customers was notsomething it would normally do in conductof its business and was offensive to it,manufacturer opposed order as a matterof protecting its customers’ privacy anddata security, and bypassing passcode se-curity required employee time, hardware,and software from manufacturer’s normalbusiness operations. 28 U.S.C.A.§ 1651(a).

16. Searches and Seizures O142Even assuming All Writs Act (AWA)

authorized court to issue an order compel-ling smartphone manufacturer to bypasspasscode security on drug trafficking de-fendant’s device so that government couldexecute a search warrant, governmentfailed to establish that such an order wasnecessary for it to successfully search de-vice, as a factor weighing heavily againstcourt’s exercise of its discretionary author-ity to issue order, where government gaveconflicting statements about its ability tobypass passcode security without manufac-turer’s help. 28 U.S.C.A. § 1651(a).

Lauren Howard Elbert, Ameet B. Ka-brawala, Saritha Komatireddy, UnitedStates Attorney’s Office, Brooklyn, NY, forUnited States of America.

Marc J. Zwillinger, Jeffrey G. Landis,Zwillgen PLLC, Washington, DC, KennethM. Dreifach, Zwillgen, New York, NY, forApple Inc.

MEMORANDUM AND ORDER

JAMES ORENSTEIN, MagistrateJudge:

The government seeks an order requir-ing Apple, Inc. (‘‘Apple’’) to bypass the

passcode security on an Apple device. Itasserts that such an order will assist in theexecution of a search warrant previouslyissued by this court, and that the All WritsAct, 28 U.S.C. § 1651(a) (the ‘‘AWA’’), em-powers the court to grant such relief.Docket Entry (‘‘DE’’) 1 (Application). Forthe reasons set forth below, I concludethat under the circumstances of this case,the government has failed to establish ei-ther that the AWA permits the relief itseeks or that, even if such an order isauthorized, the discretionary factors Imust consider weigh in favor of grantingthe motion. More specifically, the estab-lished rules for interpreting a statute’stext constrain me to reject the govern-ment’s interpretation that the AWA em-powers a court to grant any relief notoutright prohibited by law. Under a moreappropriate understanding of the AWA’sfunction as a source of residual authorityto issue orders that are ‘‘agreeable to theusages and principles of law,’’ 28 U.S.C.§ 1651(a), the relief the government seeksis unavailable because Congress has con-sidered legislation that would achieve thesame result but has not adopted it. Inaddition, applicable case law requires meto consider three factors in decidingwhether to issue an order under the AWA:the closeness of Apple’s relationship to theunderlying criminal conduct and govern-ment investigation; the burden the re-quested order would impose on Apple; andthe necessity of imposing such a burden onApple. As explained below, after review-ing the facts in the record and the parties’arguments, I conclude that none of thosefactors justifies imposing on Apple the ob-ligation to assist the government’s investi-gation against its will. I therefore denythe motion.

I. Background

On June 6, 2014, a magistrate judge ofthis court granted the government’s appli-


cations for a warrant to search the Queens,New York residence of Jun Feng (‘‘Feng’’),whom it suspected of involvement in drugtrafficking, as well as for warrants to ar-rest Feng and other suspected coconspira-tors. United States v. The premisesknown and described as 41–21 149thStreet, 1st Fl., Queens, NY, 14–MJ–0530(MDG), DE 2 (search warrant) (sealed);United States v. Shu Yong Yang, et al.,14–CR–0387 (MKB), DE 1 (complaint) &DE 2 (arrest warrants). Feng was arrest-ed on June 11, 2014, and initially ordereddetained; he was subsequently released onconditions on July 18, 2014. Yang, DE 25(minute entry); DE 26 (detention order);DE 50 (minute order reflecting release).On July 9, 2014, a grand jury sitting in thisdistrict issued an indictment accusingFeng and four other named defendants,together with unnamed others, of conspira-cy to traffic in methamphetamine. SeeYang, DE 47 ¶ 2.

In executing the warrant to searchFeng’s residence, agents of the UnitedStates Drug Enforcement Agency(‘‘DEA’’) properly seized several mobiledevices, including Feng’s mobile telephone.See Govt. II at 5.1 As agents later learned,that telephone was an iPhone 5s that used

Apple’s iOS 7 for its operating system.2

See id.; Tr. at 7.3

Over the course of the next year, al-though the prosecution of Feng and hiscodefendants moved forward (as did, pre-sumably, the government’s investigation ofthe unknown others mentioned in the in-dictment), the government apparently didnothing at all to discover what evidence, ifany, could be gleaned from Feng’s iPhone.Instead, it waited until July 6, 2015, toseek a warrant to search that device andthe others seized from Feng’s residence.See United States v. Cellular TelephoneDevices Seized On Or About June 11, 2014From Premises Located At 41–21 149thStreet, First Floor, In Queens, NY, 15–MJ–0610 (VVP), DE 1 (application forwarrant to search devices) (the ‘‘DeviceApplication’’). A magistrate judge of thiscourt granted the latter application andissued a warrant to search the devices thatsame day. Id., DE 2 (the ‘‘Device War-rant’’). Like the earlier warrant to searchFeng’s residence, this warrant set a two-week time limit on its execution. Id.

At some point during the following twoweeks, the government ‘‘initiate[d] the exe-cution of the search warrant [for Feng’s

1. To the extent that the Application also con-stitutes the government’s initial memorandumin support of its request for relief, see id. at 2,I will alternatively cite it as ‘‘Govt. I.’’ I citeother sources of the parties’ arguments asfollows. See DE 11 (Apple’s initial memoran-dum in partial opposition) (‘‘Apple I’’); DE 15(government’s reply) (‘‘Govt.II’’); DE 16 (Ap-ple’s supplemental opposition, addressing ad-ditional issues at my request) (‘‘Apple II’’);DE 19 (transcript of hearing dated Oct. 26,2015) (‘‘Tr.’’); DE 20 (Apple’s post-hearingsupplemental letter dated Oct. 28, 2015) (‘‘Ap-ple III’’); DE 21 (government’s post-hearingsupplemental memorandum dated Oct. 28,2015) (‘‘Govt.III’’).

2. The DEA agents never returned the warrantwith the inventory of seized items as required.See Fed.R.Crim.P. 41(f)(1)(D). I assume that

the warrant was executed during the author-ized two-week period that expired on June 20,2014. The date of Feng’s arrest—which coin-cided with the arrests of all of his codefen-dants—fell within that period, and thus seemslikely to have been the date of the search aswell.

3. The record does not reveal the precise ver-sion of iOS 7 installed on Feng’s iPhone, butneither the government nor Apple has sug-gested that any differences among the severalversions of that operating system—as op-posed, for instance, to the important differ-ences between iOS 7 on one hand and iOS 8and later versions on the other in terms of thedifficulty of bypassing passcode security—hasany bearing on the technical issues pertinentto this matter.


iPhone] by attempting to search the de-vice, turning it on and placing it in airplanemode. The [DEA] agents TTT began thatsearch but were unable to complete [it]because’’ the device required a passwordto allow access to certain information. Tr.at 6. The DEA agents then sought theassistance of the Federal Bureau of Inves-tigation (‘‘FBI’’), but remained unable tobypass the iPhone’s passcode security. Id.at 6–7; see also Govt. II at 5.

At that point—after the expiration ofthe two-week period during which agentswere permitted to execute the Device War-rant—the government sought Apple’stechnical assistance. See Govt. II at 6;Tr. at 6. There appears to be no disputethat Apple’s response, consistent with itspast practice in at least 70 instances, wasthat it could and would unlock Feng’sphone for the agents, but only if a courtissued a lawful order requiring it to do so.See Govt. II at 6–7; Tr. at 7–8. Alsoconsistent with past practice, Apple pro-vided the agents with the specific technicallanguage it deemed sufficient to makeclear its obligation to provide the servicesthat would allow the agents to gain accessto the iPhone’s passcode-protected data.See Govt. II at 6–7; Tr. at 7–8, 56–57.4

On October 8, 2015, the governmentfiled the instant Application, together withthe proposed order that Apple had helpedit draft. Relying exclusively on the AWA(and cases interpreting it) for authority,the government made several pertinentfactual assertions beyond those recountedabove:

1 ‘‘Because the iOS device is locked, lawenforcement agents are not able toexamine the data stored on the iOSdevice as commanded by the searchwarrant.’’ Govt. I at 1.

1 ‘‘[I]n other cases, courts have orderedApple to assist in effectuating searchwarrants under the authority of theAll Writs Act. Additionally, Apple hascomplied with such orders.’’ Id. at 2.

1 ‘‘The requested order would enableagents to comply with this Court’swarrant commanding that the iOS de-vice be examined for evidence identi-fied by the warrant.’’ Id.

1 ‘‘Examining the iOS device furtherwithout Apple’s assistance, if it is pos-sible at all, would require significantresources and may harm the iOS de-vice.’’ Id. at 2–3.

4. The government’s assertion that ‘‘Apple TTTprovided the government with specific lan-guage to submit to the Court[,]’’ Govt. II at 2,could be read to suggest that Apple somehowproposed or approved the government’s reli-ance on the AWA as authority for the request.I note, however, that it is only the Applicationitself that cites the AWA; the proposed ordersubmitted with it does not, but instead con-tains the technical language specifically de-scribing the assistance the government wantsApple to provide. See DE 1–1; Tr. at 57.Also, the reference above to ‘‘the iPhone’spasscode-protected data’’ is deliberately cir-cumscribed. It omits information that theagents could, under certain circumstances,access without entering the correct passcode,such as a log of recent telephone calls madeor received on the device. See DE 15–4

(Govt. II, Ex. D; excerpt from Apple on-lineuser’s manual) (‘‘Allow Access When Locked:Allow access to some features when your de-vice is locked, including Notifications View,Siri, and Control Center.’’). It also omitsother types of data that might be stored on thedevice (such as information relating to third-party applications that Feng had installed onthe device) that could be encrypted or protect-ed by different passcodes and therefore inac-cessible to someone using the device’s pas-scode without additional assistance that thegovernment does not seek here. The recorddoes not reveal whether the government’sagents, in their attempts to execute the war-rant to date, have tried to access informationon Feng’s device that is not passcode protect-ed and, if so, what they found as a result.


1 ‘‘[T]he [requested] order is not likelyto place any unreasonable burden onApple.’’ Id. at 3.

On October 9, 2015, I issued a Memo-randum and Order that declined to rule onthe Application ex parte, and instead af-forded Apple an opportunity to be heard inadvance of any decision about the applica-bility of the AWA in the circumstances ofthis case. DE 2, In re Order RequiringApple, Inc. to Assist in the Execution of aSearch Warrant Issued by this Court, 2015WL 5920207 (E.D.N.Y. Oct. 9, 2015). Isimultaneously directed the Clerk to main-tain the Application—but not the Memo-randum and Order, which revealed no fac-tual details of the matter—under seal, onthe mistaken assumption that its publicdissemination could adversely affect an on-going criminal investigation. DE 3. In itssubsequent submission, the governmentstated that it had never intended to submitunder seal either the Application or theproposed order (both of which it attachedto its publicly filed legal memorandum),and also noted that the 2015 search war-rant authorizing the search of Feng’siPhone was already available on the publicdocket. See Govt. II at 2 n.1 & Ex. A.

Apple submitted its initial opposition tothe Application on October 19, 2015; thegovernment replied on October 22, 2015;Apple filed a supplemental response onOctober 23, 2015; 5 and I heard oral argu-ment on October 26, 2015. See Apple I;Govt. II; Apple II; DE 18 (minute entry).

At oral argument, it became apparent thatthere were a number of factual and legalissues that the government and Appleshould have further opportunity to ad-dress, and I therefore set a schedule forthem to file post-hearing submissions. DE18. Apple and the government filed theirrespective supplemental briefs on October28, 2015. See Govt. III; Apple III.

The accelerated briefing and argumentschedule described above was not a reflec-tion of the simplicity of the issues in dis-pute. Rather, it accommodated the gov-ernment’s interest in resolving the matter(both before me and on review of my deci-sion by a district judge) in sufficient timeto use any evidence it might secure withApple’s assistance at Feng’s trial, whichwas then scheduled to begin on November16, 2015. See Govt. II at 4. However, justone day after the oral argument in thiscase, the court scheduled a proceeding tohave Feng enter a new plea; two dayslater, on October 29, 2015, Feng pleadedguilty pursuant to an agreement with thegovernment. See Yang, Scheduling Orderdated Oct. 27, 2015; id., DE 119 (tran-script of plea allocution dated Oct. 29,2015) (‘‘Allocution’’) at 12–13 (confirmingFeng’s agreement with the government).In notifying me of Feng’s plea on the dayit was entered, the government wrote thatit ‘‘persists’’ in the pending Application,‘‘but in view of the guilty plea, no longerrequests expedited treatment.’’ DE 22.

5. Apple, in its initial submission, took pains toavoid addressing any issue other than thefeasibility and burdensomeness of the request-ed relief—explaining that that was all I hadasked it to do. In particular, it did not pro-vide its views on the legal question of whetherthe AWA empowers the court to grant theApplication, and it apparently sought no op-portunity to do so later. See Apple I at 1 &n.2 (‘‘Apple is not requesting oral argu-ment.’’). Because I concluded that Apple wasin the best position to knowledgeably litigate

the legal issue presented here—and in partic-ular, in a better position to do so than theAmerican Civil Liberties Union (‘‘ACLU’’),which had offered to submit its own brief onbehalf of itself and other amici curiae, see DE10—I asked Apple to file a supplemental re-sponse addressing the legal issue and to ap-pear at oral argument, if only to answer myquestions; I simultaneously denied theACLU’s motion to file an amicus brief. SeeOrders dated Oct. 20, 2015.


Because the desire to secure potentialevidence for Feng’s trial was the only basisfor seeking Apple’s assistance that thegovernment had identified up to that point,see Govt. II at 3 (‘‘[t]he government seeksevidence relevant to a defendant’s guilt ina federal criminal case’’), I promptly di-rected the government to explain why theApplication was not moot. Order datedOct. 30, 2015. The government respondedthat same day. It noted that Feng has yetto be sentenced, and that his case there-fore remains open—although it did notattempt to explain how any information onthe iPhone might alter the advisory sen-tencing guidelines range that would applybased on factors, including the amount andtype of drugs involved in the offense, thatthe parties agreed the court could takeinto account. See DE 25 at 2; Allocutionat 14–16. In addition to relying on thecontinuing potential need for evidenceagainst Feng, the government also prof-fered a new theory: it noted that ‘‘Fengpleaded guilty to a narcotics conspiracy,and the government’s investigation intothat conspiracy is ongoing. The underly-ing search warrant authorizes the govern-ment to seize evidence relating to Feng‘and others,’ including ‘customers’ and‘sources of drugs.’ ’’ DE 25 at 1 (quotingApplication, Ex. A, Attachment B).6

For several months after Feng’s pleaand the government’s letter, this case pro-gressed no further. On February 12,2016—apparently unprompted by any de-velopment in this case, but just as appar-ently, in hindsight, reacting to develop-

ments elsewhere—Apple filed a letter inresponse to the government’s submissionabout the procedural viability of the Appli-cation in light of Feng’s plea. Apple es-chewed comment on whether the govern-ment’s ongoing hunt for unindicted others,or the prospect of Feng’s sentencing, suf-ficed to keep the controversy alive. In-stead, Apple alluded to ‘‘additional re-quests similar to the one underlying thecase before this Court’’ and the fact that ithas ‘‘been advised that the governmentintends to continue to invoke the All WritsAct in this and other districts in an at-tempt to require Apple to assist in bypass-ing the security of other Apple devices inthe government’s possession.’’ DE 26 (let-ter dated Feb. 12, 2016) at 1. Based onthose similar requests and the anticipationof further motions under the AWA, Appleasserted that this matter ‘‘is not moot be-cause it is capable of repetition, yet evad-ing review.’’ Id. at 2 (citing United Statesv. N.Y. Tel. Co., 434 U.S. 159, 190 n. 6, 98S.Ct. 364, 54 L.Ed.2d 376 (1977)).

I recognized that while Apple’s letteridentified a sound legal theory, it did notsupply a sufficiently particularized factualbasis for applying it in this case. More-over, it was apparent that those unreport-ed facts might bear on a number of legalissues about which the parties had disa-greed at oral argument. I therefore di-rected Apple to provide, among otherthings, specific details of the requests ithad received from the government duringthe pendency of this action, the positionApple had taken in response, and the re-

6. The pretrial proceedings in Feng’s case hadlasted for nearly a year after the defendants’arrest when, at a status conference on June 3,2015, Feng made clear his intention to pro-ceed to trial (notwithstanding the other re-maining defendants’ announced intentions toenter guilty pleas) and the court indicated adesire to begin the trial in August. See Yang,Minute Entry dated June 3, 2015. On July

10, 2015, the court in Feng’s case acceded tothe parties’ need to translate and review ex-tensive recordings in Chinese and set a trialdate of November 16, 2015. See Yang, Min-ute Entry dated July 10, 2015. It was only atthat point that the government, on July 6,2015, sought the warrant it seeks to have thecourt enforce here.


sults of those requests. See Order datedFeb. 16, 2016. Although I did not requirea response until March 1, 2016, Apple sup-plied the requested information the nextday. DE 27 (letter dated Feb. 17, 2016).In that response, Apple identified nine re-quests filed in federal courts across thecountry from October 8, 2015 (the date ofthe instant Application) through February9, 2016. Id. at 2. In each, Apple has beenordered under the authority of the AWA(or has been told that an order has beenrequested or entered) to help the govern-ment bypass the passcode security of atotal of twelve devices; in each such casein which Apple has actually received acourt order, Apple has objected. Id. Noneof those cases has yet been finally re-solved, and Apple reports that it has not todate provided the requested assistance inany of them. Id. at 2–3.

In addition to the nine new cases de-scribed above, Apple also reported that asrecently as February 16, 2016, shortly af-ter my own order of the same date, theUnited States District Court for the Cen-tral District of California had entered anex parte order under the AWA directingApple

to perform even more burdensome andinvolved engineering than that sought inthe case currently before this Court—i.e., to create and load Apple-signed soft-ware onto the subject iPhone device tocircumvent the security and anti-tam-pering features of the device in order toenable the government to hack the pas-scode to obtain access to the protecteddata contained therein.

Id. at 1 (citing DE 27–1 (copy of In theMatter of the Search of an Apple iPhoneSeized During the Execution of a SearchWarrant on a Black Lexus IS300, Califor-

nia License Plate 35KGD203, No.) (the‘‘California’’ action), Order CompellingApple, Inc. to Assist Agents in Search(C.D.Cal. Feb. 16, 2016)). On February22, 2016, the government confirmed thatApple’s description of the recent requestscould properly be filed on the public dock-et without jeopardizing any pending crimi-nal investigation; in doing so, it noted theexistence of yet one more case in which acourt has ordered Apple to help the gov-ernment bypass the passcode security of alocked device. DE 28. This matter istherefore one of a dozen pending cases inwhich the government and Apple disagreeas to the court’s authority to commandApple to assist the government in defeat-ing the passcode security of devices Applehas manufactured.7

II. Discussion

A. Mootness

[1] As a threshold matter, I agree withthe government that its Application is notmoot as a result of Feng’s guilty plea.Whether the government will ever actuallyuse any information it may find on Feng’sphone either to litigate the sentencingphase of Feng’s prosecution or to identifyand prosecute the coconspirators, custom-ers, and suppliers the government is pur-suing, is ultimately of no moment. Thegovernment enjoys the prerogative to con-duct lawful investigations into suspectedcriminal activity as it sees fit, and in thiscase it chooses to search for evidence onFeng’s iPhone notwithstanding the factthat Feng’s guilt has been established.Having made that choice, it is free to takethe position it does here, and a ruling onthe Application will therefore resolve a livedispute about whether Apple must unwill-ingly be compelled to provide the assis-

7. In addition, the government has identifiedthree other closed cases in which a courtissued an order under the AWA requiring

Apple to extract information from a passcode-protected device, all without objection fromApple. See Govt. II at 9–10.


tance the government seeks. The matteris therefore not moot.8

B. The All Writs Act

For as long as this nation has had courtsestablished by Congress pursuant to Arti-cle III of the Constitution, those courtshave been endowed with broad statutoryauthority to ensure they could effectivelycarry out the duties of an independentjudiciary by issuing the orders necessaryto do so—even if Congress had not had theforesight to create all of the proceduralmechanisms that might be required. Asinitially enacted by the First Congress in1789, the AWA provided:

That all the before-mentioned courts ofthe United States, shall have power toissue writs of scire facias, habeas cor-pus, and all other writs not speciallyprovided for by statute, which may benecessary for the exercise of their re-spective jurisdictions, and agreeable tothe principles and usages of law.

Judiciary Act of 1789, 1 Stat. 73, § 14(Sept. 24, 1789); see id. §§ 1–5 (establish-ing the courts mentioned in Section 14).That language has been amended onlytwice in the succeeding centuries, and nev-er in any substantive way. In 1948, whenCongress codified federal criminal law inTitle 18 of the United States Code, itrendered the statute’s text in a more mod-ern style by removing the reference to twospecific common law writs, it updated thelanguage to reflect the broader array offederal courts then in existence, it expand-

ed ‘‘necessary’’ to ‘‘necessary or appropri-ate’’, and it decided (for reasons that Icannot imagine have any impact on thiscase) to switch the order of words ‘‘princi-ples’’ and ‘‘usages’’:

The Supreme Court and all courts estab-lished by Act of Congress may issue allwrits necessary or appropriate in aid oftheir respective jurisdictions agreeableto the usages and principles of law.

80 Pub.L. 772, 62 Stat. 683, 944 (June 25,1948). A year later, Congress merely in-serted the word ‘‘and’’ before the word‘‘agreeable’’. See 81 Pub.L. 72, § 90, 63Stat. 89, 102 (May 24, 1949). Thus, ascurrently formulated, the AWA provides,in pertinent part:

The Supreme Court and all courts estab-lished by Act of Congress may issue allwrits necessary or appropriate in aid oftheir respective jurisdictions and agree-able to the usages and principles of law.

28 U.S.C. § 1651(a).

[2] The plain text of the statute thusconfers on all federal courts the authorityto issue orders where three requirementsare satisfied:

1. issuance of the writ must be ‘‘in aidof’’ the issuing court’s jurisdiction;

2. the type of writ requested must be‘‘necessary or appropriate’’ to providesuch aid to the issuing court’s juris-diction; and

3. the issuance of the writ must be‘‘agreeable to the usages and princi-ples of law.’’

8. I do not rely on Apple’s assertion that thecase is justiciable on the ground that thedispute here is capable of repetition yet evad-ing review. This case would obviously not bemoot if Feng had continued to insist on hisright to a trial; and there is no reason tosuppose that in the dozen pending cases thereare none in which Apple’s objection to anorder under the AWA requiring its assistancecan be litigated and resolved before being

mooted by a defendant’s plea. Indeed, it isentirely possible that some of those cases—such as the California action, in which theonly known participants in the crime underinvestigation have died, and where, as a re-sult, there are no defendants with pendingcharges at all—cannot be concluded withoutthe court first resolving the dispute arisingunder the AWA.


[3, 4] If an application under the AWAmeets all three of those requirements, thecourt ‘‘may’’ issue the requested writ inthe exercise of its discretion—but it isnever required to do so. See, e.g., Appli-cation of U.S. in Matter of Order Autho-rizing Use of a Pen Register, 538 F.2d 956,961 (2d Cir.1976), rev’d on other grounds,United States v. N.Y. Tel. Co., 434 U.S.159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977);Morrow v. District of Columbia, 417 F.2d728, 736 (D.C.Cir.1969); Paramount FilmDistributing Corp. v. Civic Center Theatre,Inc., 333 F.2d 358, 360 (10th Cir.1964);Chemical & Indus. Corp. v. Druffel, 301F.2d 126, 129 (6th Cir.1962). A court de-ciding whether to take such discretionaryaction should consider three additional fac-tors:

1. the closeness of the relationship be-tween the person or entity to whomthe proposed writ is directed and thematter over which the court has ju-risdiction;

2. the reasonableness of the burden tobe imposed on the writ’s subject; and

3. the necessity of the requested writ toaid the court’s jurisdiction (whichdoes replicate the second statutoryelement, despite the overlapping lan-guage).

See N.Y. Tel. Co., 434 U.S. at 174–78, 98S.Ct. 364.

As set forth below, I conclude that in thecircumstances of this case, the govern-ment’s application does not fully satisfy thestatute’s threshold requirements: althoughthe government easily satisfies the stat-ute’s first two elements, the extraordinaryrelief it seeks cannot be considered ‘‘agree-able to the usages and principles of law.’’In arguing to the contrary, the govern-ment posits a reading of the latter phraseso expansive—and in particular, in suchtension with the doctrine of separation ofpowers—as to cast doubt on the AWA’sconstitutionality if adopted. Moreover, I

further conclude that even if the statutedoes apply, all three discretionary factorsweigh against issuance of the requestedwrit, and that the Application shouldtherefore be denied as a matter of discre-tion even if it is available as a matter oflaw.

C. Statutory Requirements1. Aid of Jurisdiction

[5] Controlling case law conclusivelydemonstrates that the government seeksrelief that is in aid of this court’s jurisdic-tion for purposes of the AWA. To be sure,Justice Stevens, in a dissenting opinion inN.Y. Tel. Co. (reflecting the views of him-self and Justices Brennan, Marshall, andStewart), persuasively explained the im-portant distinction between the judiciary’sinterest in authorizing a search and theexecutive’s wholly different agenda in us-ing that authority to gather evidence—andsimultaneously demonstrated that the caselaw interpreting the AWA had consistentlyreflected that distinction. See N.Y. Tel.Co., 434 U.S. at 186–90, 98 S.Ct. 364 (Ste-vens, J., dissenting); id. at 178, 98 S.Ct.364 (Stewart, J., concurring in part anddissenting in part) (joining Part II of Jus-tice Stevens’ dissent).

The N.Y. Tel. Co. majority, however,decisively rejected the dissenters’ argu-ments:

The dissent’s attempt to draw a distinc-tion between orders in aid of a court’sown duties and jurisdiction and ordersdesigned to better enable a party toeffectuate his rights and duties TTT isspecious. Courts normally exercisetheir jurisdiction only in order to protectthe legal rights of parties. In Price v.Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92L.Ed. 1356 (1948), for example, the pro-duction of the federal prisoner in courtwas required in order to enable him toeffectively present his appeal which thecourt had jurisdiction to hear. Similar-


ly, in Harris v. Nelson, 394 U.S. 286, 89S.Ct. 1082, 22 L.Ed.2d 281 (1969), dis-covery was ordered in connection with ahabeas corpus proceeding for the pur-pose of enabling a prisoner adequatelyto protect his rights. Here, we haveheld that Fed. Rule Crim. Proc. 41 pro-vided the District Court with power toauthorize the FBI to install pen regis-ters. The order issued by the DistrictCourt compelling the Company to pro-vide technical assistance was required toprevent nullification of the court’s war-rant and the frustration of the Govern-ment’s right under the warrant to con-duct a pen register surveillance, just asthe orders issued in Price and Harriswere necessary to protect the rights ofprisoners.

Id. at 175 n. 23, 98 S.Ct. 364. Thus, regard-less of the persuasiveness of any argumentto the contrary, I am constrained to con-clude that, as a general matter, it wouldnormally be in aid of the court’s jurisdic-tion to order Apple to assist the govern-ment in executing a valid warrant tosearch Feng’s device.

Further, the fact that the warrant to beenforced expired long before the govern-ment sought to compel Apple’s assistancein executing it does nothing to extinguishthe court’s jurisdiction. Although the gen-eral rule is that the government must exe-

cute a search warrant no more than four-teen days after its issuance, Fed.R.Crim.P.41(e)(2)(A)(i), in the context of a warrantto seize electronic storage media such asFeng’s device, that time limit ‘‘refers tothe seizure or on-site copying of the mediaTTT and not to any later off-site copying orreview.’’ Fed.R.Crim.P. 41(e)(2)(B). Ac-cordingly, ordering Apple to help the gov-ernment bypass the passcode security onFeng’s device would be in aid of thiscourt’s jurisdiction for purposes of theAWA.

2. Necessary or Proper

[6, 7] I likewise readily conclude thatthe requested order to Apple is ‘‘necessaryor appropriate’’ within the meaning of theAWA. ‘‘Indeed, ‘[u]nless appropriately con-fined by Congress, a federal court mayavail itself of all auxiliary writs as aids inthe performance of its duties, when the useof such historic aids is calculated in itssound judgment to achieve the ends ofjustice entrusted to it.’ ’’ N.Y. Tel. Co.,434 U.S. at 172–73, 98 S.Ct. 364 (quotingAdams v. United States ex rel. McCann,317 U.S. 269, 273, 63 S.Ct. 236, 87 L.Ed.268 (1942)).9

3. Agreeable to the Usagesand Principles of Law

[8] The question whether the AWApermits the relief sought here thus re-

9. I explain below, in discussing the statute’s‘‘usages and principles’’ requirement, why Ireject the government’s assertion that theAWA empowers a court to take any action notprohibited by act of Congress. As the passagefrom N.Y. Tel. Co. quoted above demonstrates,however, the government’s position is notwholly divorced from prior judicial interpre-tation of the Act. I agree that only a Congres-sional prohibition may place a judicial actionbeyond the bounds of what would otherwisebe ‘‘necessary or appropriate in aid of’’ thecourt’s jurisdiction. But that does not meanthat every writ Congress has not proscribed isnecessarily ‘‘agreeable to the usages and prin-ciple of law.’’ Indeed, ascribing such parallelmeaning to the latter clause would strip it of

any independent effect, and thereby run afoulof an established rule of statutory construc-tion. Duncan v. Walker, 533 U.S. 167, 174,121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (‘‘It isour duty ‘to give effect, if possible, to everyclause and word of a statute.’ ’’) (quotingUnited States v. Menasche, 348 U.S. 528, 538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955)); cf.,Marx v. Gen. Revenue Corp., ––– U.S. ––––, 133S.Ct. 1166, 1177, 185 L.Ed.2d 242 (2013)(‘‘The canon against surplusage is not an ab-solute rule TTTT [it] assists only where a com-peting interpretation gives effect to everyclause and word of a statute.’’) (internal quo-tations omitted). Thus, the government’s at-tempt to rely on the quoted passage from N.Y.


duces to whether it is ‘‘agreeable to theusages and principles of law’’ to compelApple—a private party with no allegedinvolvement in Feng’s criminal activity—toperform work for the government againstits will. Federal case law offers little ifany guidance on how to understand thatterm in the context of this case.10 I there-fore consider this aspect of the statute inthe context of case law that more generallydiscusses the AWA’s overall function as a‘‘gap filler’’—that is, a source of interstitialauthority that renders it unnecessary forCongress to anticipate every circumstancein which a federal court might properly actto vindicate the rights of parties before it.See, e.g., Harris, 394 U.S. at 300, 89 S.Ct.1082 (‘‘the purpose and function of the AllWrits Act to supply the courts with theinstruments needed to perform theirduty’’) (citations omitted); Michael v.I.N.S., 48 F.3d 657, 669 (2d Cir.1995)(‘‘[T]he scope of the all writs provisionconfine[s] it to filling the interstices offederal judicial power when these gapsthreaten[ ] to thwart the otherwise properexercise of federal courts’ jurisdiction.’’)(quoting Pennsylvania Bureau of Correc-tion v. U.S. Marshals Serv., 474 U.S. 34,41, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985)).

[9, 10] The limits of such gap-filling au-thority are easily discerned. At one end ofthe spectrum, the AWA cannot be inter-preted to empower courts to do somethingthat another statute already authorizes(but that might have threshold require-ments that cannot be satisfied in the cir-cumstances of a particular case). SeePennsylvania Bureau of Correction, 474U.S. at 43, 106 S.Ct. 355. At the otherend, the government allows that a courtcannot rely on the AWA (or, presumably,anything else) to issue an order that isexplicitly or implicitly prohibited under afederal statute. See Govt. III at 7.

The gap between those two poles islarge indeed, and the crux of Apple’s dis-pute with the government about the mean-ing of the AWA’s requirement that a writbe ‘‘agreeable to the usages and principlesof law’’ is whether the statute fills all ofthat gap, as the government contends, oronly some of it. In particular, unlike thegovernment, Apple contends that a courtorder that accomplishes something Con-gress has considered but declined toadopt—albeit without explicitly or implicit-ly prohibiting it—is not agreeable to theusages and principles of law. See Apple IIat 4; Apple III at 4. As explained below, I

Tel. Co. as a basis for satisfying the ‘‘usagesand principles’’ prong of the AWA, ratherthan the ‘‘necessary or appropriate’’ prong towhich the Court directly relates it, is entirelymisplaced. See Govt. III at 7.

10. The Supreme Court wrote in 1952 that,‘‘[i]n determining what auxiliary writs are‘agreeable to the usages and principles oflaw,’ we look first to the common law.’’United States v. Hayman, 342 U.S. 205, 221 n.35, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (quotingPrice, 334 U.S. at 281, 68 S.Ct. 1049). Butthat observation—made in the context of de-termining whether a particular type of writ ofhabeas corpus was available under commonlaw, and therefore under the AWA—has nobearing on the instant dispute. Similarly, theTenth Circuit’s citation to Hayman for the

same point in the context of determining theavailability of a collateral challenge to a crim-inal conviction also offers no interpretive as-sistance here. See Rawlins v. Kansas, 714F.3d 1189, 1196 (10th Cir.2013) (citing Hay-man, 342 U.S. at 221 n. 35, 72 S.Ct. 263). Inboth cases, the discussion of the ‘‘usages andprinciples’’ clause was largely directed toidentifying the types of writs that could be sodescribed. Apple does not object that thetype of assistance the government seeks herecannot find a close enough antecedent in thecommon law; the issue here—which Haymanand Rawlins had no need to address—iswhether the issuance of such a writ is anappropriate application of the AWA’s gap-filling function.


agree.


‘‘[A]greeable to’’ means, in essence,‘‘consistent with.’’ See, e.g., Webster’sThird New International Dictionary ofthe English Language Unabridged at 43(Merriam–Webster 2002) (defining ‘‘agree-able’’ to mean, among other things, ‘‘inharmony or keeping: CONSISTENT, CONSO-

NANT’’). Congress could easily have writ-ten the AWA to mean what the govern-ment says it means simply by requiringthat a court’s orders under the statutemust be ‘‘agreeable to the law’’—becauseany action not prohibited by law is, bydefinition, agreeable to the law.18 But theAWA requires an order issued under itsaegis to be agreeable not merely to somepart of the entire body of law, but to thelaw’s ‘‘usages’’ and ‘‘principles’’—whichmust mean something else. The most nat-ural reading gives meaning to the wholephrase by limiting the permissible ordersto those that not only fail to violate legisla-

tive prohibitions, but that also are conso-nant with both the manner in which thelaws were developed (that is, the ‘‘princi-ples’’ that the laws reflect) and the mannerin which the laws have been interpretedand implemented (that is, the ‘‘usages’’ ofthe various laws). Others may proposeplausible alternative interpretations of‘‘agreeable to the usages and principles oflaw.’’ 19 But whatever each of its wordsmay mean in isolation, the rules of statuto-ry construction compel me to conclude thattheir meanings are distinct—and the gov-ernment’s preferred reading of the AWAdoes not permit that.

18. Indeed, later Congresses have endorsedjust such simple formulations in approvingrules that give the judiciary the flexibility itneeds to conduct its business. See Fed.R.Crim.P. 57(b) (‘‘A judge may regulate prac-tice in any manner consistent with federallaw, these rules, and the local rules of thedistrict.’’); Fed.R.Civ.P. 83(a)(1) (authorizingpromulgation of local rules that ‘‘must beconsistent with—but not duplicate—federalstatutes and rules adopted under 28 U.S.C.§§ 2072 and 2075’’); Fed.R.Civ.P. 83(b) (‘‘Ajudge may regulate practice in any mannerconsistent with federal law, rules adopted un-der 28 U.S.C. §§ 2072 and 2075, and thedistrict’s local rules.’’).

19. To date, however, the government has notcome up with any such permissible alterna-tive construction, let alone a better one. Atoral argument, when I invited the governmentto reconcile its broad reading of the AWA‘‘with a statute that includes not just agree-able to law but agreeable to principles andusages of law [sic],’’ Tr. at 38, it acknowl-edged my concern but then went on to an-

swer a different question by discussing theextent to which a particular statute is suffi-ciently comprehensive as to suggest that itslimitations imply a legislative prohibition ofother actions. Id. at 38–39. The governmentdid not thereafter return to the question ofstatutory construction, and it similarly de-flected the question in its post-hearing sub-mission. See Govt. III at 7 (acknowledgingthe need to interpret the ‘‘usages and princi-ples of law’’ clause as a whole, and citingcases in support of its view on the matter, butoffering no argument about how to give inde-pendent meaning to both ‘‘usages’’ and ‘‘prin-ciples’’ consistent with that view). Moreover,as explained above, see n.9, supra, the princi-pal authority on which the government reliesin that argument—and indeed the source ofthe sole rationale, namely, that ‘‘federalcourts may avail themselves of all auxiliarywrits ‘unless appropriately confined by Con-gress[,]’’ id. (quoting N.Y. Tel. Co., 434 U.S. at171, 98 S.Ct. 364)—does not actually purportto interpret the AWA’s ‘‘usages and principlesof law’’ clause, but rather its ‘‘necessary orappropriate’’ clause.


D. Discretionary Factors

1. Closeness

a. Apple’s Relationship to Feng’sCriminal Activity

[12] In N.Y. Tel. Co., the SupremeCourt held that where there was probablecause to believe that a telephone compa-ny’s own property was ‘‘being employed tofacilitate a criminal enterprise on a con-tinuing basis[,]’’ and where the companywas ‘‘ a highly regulated public utility witha duty to serve the public,’’ the companywas not ‘‘so far removed from the underly-ing controversy that its assistance couldnot be permissibly compelled.’’ 434 U.S.at 174, 98 S.Ct. 364. I explained in theMemorandum and Order why it appearedthat the circumstances of this case arematerially different. See 2015 WL5920207, at *5. After considering the later-submitted arguments from the governmentand Apple, I adhere to that view, andconclude that unlike the public utility inN.Y. Tel. Co., Apple is too far removedfrom Feng’s criminal conduct to have anyobligation to assist the DEA’s investiga-tion.

To the extent that Feng used his iPhonein committing crimes, he used his ownproperty, not Apple’s. Unlike the tele-phone company in N.Y. Tel. Co., whichowned the facility used for criminal com-munications, Apple has no ownership inter-est in anything that the record revealsFeng used to commit a crime. And unlikethe telephone company—‘‘a highly regulat-ed public utility with a duty to serve thepublic,’’ 434 U.S. at 174, 98 S.Ct. 364—

Apple is a private entity with no greaterduty to serve the public than any otherbusiness.

The government argues that Apple’s re-lationship to Feng’s criminal activity issufficiently close, notwithstanding thosedifferences, because, while Feng ownedthe device itself, he merely licensed fromApple the iOS software on which it runs.See Govt. II at 13. But while the govern-ment ably demonstrates what the licenseforbade Feng from doing—he could notlawfully ‘‘rent, lease, lend, sell, redistributeor sublicense the iOS Software[,]’’ id.(quoting license agreement ¶ B(3))—itdoes not explain the significance of thatfact in determining the proximity of Ap-ple’s relationship to Feng’s conduct. Asfar as I can discern from the record, Fengdid not at any time ‘‘rent, lease, lend, sell,redistribute, or sublicense’’ Apple’s soft-ware; what he did ‘‘sell’’ or ‘‘redistribute’’was methamphetamine—a course of con-duct in which Apple was not involved.Nor does the record support an inferencethat Feng in any way used the licensedsoftware itself—as opposed to the data itallowed Feng to store on the hardwareApple no longer owns—to facilitate hiscrimes; to the contrary the record con-tains an explicit description of the ways inwhich the government believes Feng usedhis iPhone to commit his crimes as well asthe types of evidence the DEA agentsexpected to find on it. See Device Applica-tion ¶¶ 7–28 & Attachment B. Nothing inthat description even remotely suggeststhat the licensed software played anymeaningful role in Feng’s crime compara-ble to the role the telephone company’sproperty played in the crimes under inves-tigation in N.Y. Tel. Co.26

26. If Apple’s retention of intellectual propertyrights in the software deployed in a devicesold to the public sufficed to render it suffi-

ciently close, for purposes of the AWA, to anycrime committed by any user of such a de-vice, it would eventually render the first dis-


Ultimately, the government’s point isnot that Apple in any way facilitatedFeng’s criminal conduct, but rather that itreaps profits from selling devices (andleasing the software on which those de-vices run) to a vast group of consumersamong whom there are inevitably somecriminals. From that premise it draws thefollowing conclusion: ‘‘Apple cannot reapthe legal benefits of licensing its softwarein this manner and then later disclaim anyownership or obligation to assist law en-forcement when that same software playsa critical role in thwarting execution of asearch warrant.’’ Govt. II at 13–14. Thatopinion may be perfectly defensible asmoral precept (however much it may be intension with the legal system’s otherwisebroad support for free enterprise), but ithas nothing to do with the pertinent legalinquiry.27 Apple had no involvement in

Feng’s crime, and it has taken no affirma-tive action to thwart the government’s in-vestigation of that crime (a matter dis-cussed in greater detail below). Applelawfully sold to Feng, as it sells to millionsof law-abiding individuals and entities (in-cluding the government itself), a productthat can effectively secure its stored datafor the protection of its owner.28 Fengused that device for criminal purposes andleft it locked, and the government says itcannot open the lock without Apple’s help.Nothing in N.Y. Tel. Co. remotely suggeststhat in such circumstances, Apple is soclosely related to the crime under investi-gation that a court can order its assistanceunder the AWA.

b. Apple’s Relationship to theGovernment’s Investigation

[13] The government alternatively pos-its that Apple is sufficiently close to the

cretionary factor under N.Y. Tel. Co. a deadletter. As constantly increasing computingpower is continually squeezed into eversmaller storage devices, the category of con-sumer products containing licensed softwarewill continue to grow. In a world in whichso many devices, not just smartphones, willbe connected to the Internet of Things, thegovernment’s theory that a licensing agree-ment allows it to compel the manufacturers ofsuch products to help it surveil the products’users will result in a virtually limitless expan-sion of the government’s legal authority tosurreptitiously intrude on personal privacy.

27. It is no surprise that references to the ideathat all citizens have some sort of a duty—moral, if not legal—to assist law enforcementupon demand can occasionally be found injudicial opinions. For example, in an 1895decision upholding a citizen’s right to assistthe government in enforcing the law by pro-viding information about suspected criminalactivity, the Supreme Court held that ‘‘suchinformation given by a private citizen, is aprivileged and confidential communication,for which no action of libel or slander willlie[.]’’ In re Quarles, 158 U.S. 532, 535–36,15 S.Ct. 959, 39 L.Ed. 1080 (1895). In intro-ducing the topic, the Court included dictasuggesting—without any citation to authori-ty—that that right is also an obligation. Id. at

535, 15 S.Ct. 959 (‘‘It is the duty and theright, not only of every peace officer of theUnited States, but of every citizen, to assist inprosecuting, and in securing the punishmentof, any breach of the peace of the U.S. It isthe right, as well as the duty, of every citizen,when called upon by the proper officer, to actas part of the posse comitatus in upholdingthe laws of his country.’’). Nothing inQuarles suggests that the ‘‘duty’’ to which theCourt referred is legal rather than moral.

28. Just as the criminal Feng has done, theUnited States government has chosen to en-trust extremely sensitive communications andsecret documents—including those of many ofthe prosecutors and judges who work in thiscourt—to the passcode protections and otherrobust data security measures available on avariety of Apple devices. That observationdoes not mean Apple should have any greateror lesser obligation, as a matter of law ormorality, to accede to the demands of lawenforcement agencies. But it does highlightthe proposition that forcing Apple to compro-mise the data security measures it offers itscustomers may adversely affect many whorely on such technology for purposes the gov-ernment would endorse.


underlying controversy for purposes of theAWA because its ‘‘software now thwartsthe execution of the search warrant’’ forFeng’s iPhone. Govt. II at 15. That for-mulation comes after (but subtly reinter-prets) an earlier quotation from the opin-ion in N.Y. Tel. Co. As the governmentnotes, in arguing that the court has au-thority to grant relief under the AWA (asopposed to the distinct question of whethersuch authority should be exercised as amatter of discretion),

The Court held that ‘‘[t]he power con-ferred by the Act extends, under appro-priate circumstances, to persons who,though not parties to the original actionor engaged in wrongdoing, are in a posi-tion to frustrate the implementation of acourt order or the proper administrationof justice, TTT and encompasses eventhose who have not taken any affirma-tive action to hinder justice.’’

Govt. II at 11 (quoting N.Y. Tel. Co., 434U.S. at 174, 98 S.Ct. 364).

There is no question that the court hasthe authority under the AWA to compelApple—or anyone else for that matter—totake action regardless of whether it wasinvolved in the underlying criminal con-duct, so long as it does so ‘‘under appropri-

ate circumstances.’’ N.Y. Tel. Co., 434U.S. at 174, 98 S.Ct. 364. But the proposi-tion that Apple’s purported ability to‘‘thwart’’ the government’s investigationrenders it sufficiently close to the underly-ing controversy as to make such an orderappropriate is ultimately unpersuasive.Apple is not doing anything to keep lawenforcement agents from conducting theirinvestigation. Apple has not conspiredwith Feng to make the data on his deviceinaccessible.29 More importantly, perhaps,it has not even done what the telephonecompany did in N.Y. Tel. Co.—namely, ithas not barred the door to its property toprevent law enforcement agents from en-tering and performing actions they wereotherwise competent to undertake in exe-cuting the warrant for themselves.30

Indeed, the government’s complaint isprecisely that Apple is doing nothing at all.If Feng had not engaged the passcodesecurity on his device, or if the govern-ment had been able to secure an ordercompelling Feng to unlock the phone onpain of contempt sanctions, the govern-ment might well be in a position to seizethe iPhone’s data without Apple’s assis-tance. See 2015 WL 5920207, at *5 &n.3.31 Thus, Apple is not ‘‘thwarting’’ any-

29. In making this point, I do not simply reston precise requirements for holding a partyliable as a coconspirator. Not only has Appledone nothing wrong in marketing deviceswith such strong data security features, it hasexercised a freedom that Congress explicitlydeemed appropriate in balancing the needs oflaw enforcement against the interests of pri-vate industry. Specifically, in writing CA-LEA, Congress included a provision makingclear that the statute ‘‘does not authorize anylaw enforcement agency or office TTT to pro-hibit the adoption of any equipment, facility,service, or feature by TTT any manufacturer oftelecommunications equipment, or any pro-vider of telecommunications support ser-vices.’’ 47 U.S.C. § 1002(b)(1)(B). In otherwords, CALEA provides that law enforcementagencies cannot do precisely what the govern-ment suggests here: dictate to a private com-

pany in the business of manufacturing smart-phones the extent to which it may install datasecurity features on such devices.

30. In N.Y. Tel. Co., the agents would normallyhave been able to install the authorized penregister without the company’s assistance butfor the fact that the subject telephone’s wireswere so placed as to prevent the agents fromgaining surreptitious access. The agents thusneeded the telephone company not to providetechnical expertise they lacked, but only tostep out of the way and let them perform theirauthorized surveillance on company property.See 434 U.S. at 162–63, 98 S.Ct. 364.

31. The government argues that a court ordercompelling Feng to unlock the iPhone wouldbe futile because he claims to have forgotten


thing—it is instead merely declining tooffer assistance. There may well be somefor whom the distinction between a third-party’s active obstruction of law enforce-ment and its passive refusal to help ismeaningless as a matter of policy. But itis hardly meaningless as a matter of legal

analysis.32 In any event, the distinction isone that precludes a finding that Apple’srelationship either to Feng’s crime or tothe government’s investigation of it is suf-ficiently similar to the telephone compa-ny’s corresponding role in N.Y. Tel. Co. asto justify an order compelling Apple’s as-sistance.33

the passcode. See Govt. II at 20. More sur-prisingly, it takes the position that ‘‘[c]om-pelled decryption raises significant FifthAmendment issues and creates risk that thefruit of the compelled decryption could besuppressed.’’ Id. at 21. I assume the govern-ment is not concerned that such an order ofcompulsion would violate Feng’s FifthAmendment privilege against self-incrimina-tion. See Govt. II at 19 (citing United Statesv. Li, 55 F.3d 325, 329 (7th Cir.1995) for theproposition that ‘‘an [AWA] order may beused to require the production of a handwrit-ing exemplar TTT even though the subject mayface criminal sanctions as a result of his com-pliance’’); Com. v. Gelfgatt, 468 Mass. 512, 11N.E.3d 605, 612 (2014) (compelling defendantto enter passcode into encrypted computersdid not violate the Fifth Amendment rightagainst self-incrimination); Schmerber v. Cali-fornia, 384 U.S. 757, 760–65, 86 S.Ct. 1826,16 L.Ed.2d 908 (1966) (compelled extractionand analysis of blood sample is not compelledtestimony and therefore does not violate theFifth Amendment right against self-incrimina-tion). It may well be, as the governmentsuggests, that ‘‘[c]ompelled decryption raisessignificant Fifth Amendment issues’’ relatingto the due process rights of Feng or anyoneelse who might be compelled to perform suchdecryption, but I need not address such con-cerns to resolve the issue now before thecourt.

32. The distinction also helps to understandwhy so many of the cases that the governmentcites as precedent for using the AWA ‘‘insupport of warrants in a wide variety of con-texts[,]’’ Govt. II at 11–12, offer little if anyuseful guidance here. In two of the cases,lower courts simply followed N.Y. Tel. Co. toorder telephone companies to assist with trapand trace devices—orders wholly comparablein every meaningful respect to the pen regis-ter order at issue in N.Y. Tel. Co. itself. SeeIn re Application, 610 F.2d 1148, 1155 (3dCir.1979); In re Application, 616 F.2d 1122,1129 (9th Cir.1980). In four other cases on

the government’s list, the subject of the orderwas in possession of evidence of the crimeunder investigation and was ordered to pro-duce or allow law enforcement access to thatevidence—a circumstance wholly inappositehere, as Apple is not alleged to possess anyevidence of Feng’s crimes. See United Statesv. Doe, 537 F.Supp. 838, 840 (E.D.N.Y.1982)(telephone company ordered to produce tollrecords); United States v. X., 601 F.Supp.1039, 1042 (D.Md.1984) (same); United Statesv. Hall, 583 F.Supp. 717, 722 (E.D.Va.1984)(bank ordered to produce credit card rec-ords); In re Application of the United Statesfor an Order Directing X to Provide Access toVideotapes, 2003 WL 22053105, at *3 (D.Md.Aug. 22, 2003) (landlord ordered to provideaccess to security camera video recordings).

33. I address below, in the context of analyz-ing whether the relief sought here is undulyburdensome, the hypothetical example an ap-plication under the AWA to compel a drugcompany that had decided to get out of thebusiness of producing drugs used in execu-tions to supply such drugs to the governmentif they were otherwise unavailable. At oralargument, the government faulted the hypo-thetical as ‘‘inflammatory,’’ see Tr. at 47, butdid not contend that it was unrealistic. Norcould it fairly raise such an objection. Beforewriting the Court’s opinion in opinion inGlossip v. Gross, ––– U.S. ––––, 135 S.Ct.2726, 192 L.Ed.2d 761 (2015), Justice Alitoposed the following question at oral argu-ment:

JUSTICE ALITO: TTT Now, this Court hasheld that the death penalty is constitutional.It’s controversial as a constitutional matter.It certainly is controversial as a policy mat-ter. Those who oppose the death penalty arefree to try to persuade legislatures to abol-ish the death penalty. Some of those ef-forts have been successful. They’re free toask this Court to overrule the death penalty.But until that occurs, is it appropriate forthe judiciary to countenance what amounts


2. Burdensomeness

The Supreme Court acknowledged inN.Y. Tel. Co. that a court exercising itsauthority under the AWA may not impose‘‘unreasonable burdens’’ on the subjects ofits orders. 434 U.S. at 172, 98 S.Ct. 364.In explaining why compelling the tele-phone company to help the governmentinstall a pen register imposed no suchunreasonable burden in that case, theCourt wrote the following:

[I]t can hardly be contended that theCompany, a highly regulated public utili-ty with a duty to serve the public, had a

to a guerilla war against the death penaltywhich consists of efforts to make it impossi-ble for the States to obtain drugs that couldbe used to carry out capital punishmentwith little, if any, pain?

Glossip v. Gross, 2015 WL 1929998, ––– U.S.––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (U.S.Apr. 29, 2015) (transcript of oral argument) at*14. If the government can discern in Ap-ple’s conduct here a level of obstruction suffi-

cient to allow a court to compel is assistanceunder AWA, Justice Alito’s question in Glossipwould easily provide the basis for a judge tofind that a drug company’s ‘‘guerillawar[fare]’’ served only to thwart a state’s law-ful implementation of a constitutionally soundexecution, and would therefore make thecompany eligible for an order of compulsion.The possibility is anything but fanciful.


substantial interest in not providing as-sistance. Certainly the use of pen regis-ters is by no means offensive to it. TheCompany concedes that it regularly em-ploys such devices without court orderfor the purposes of checking billing op-erations, detecting fraud, and preventingviolations of law. It also agreed to sup-ply the FBI with all the informationrequired to install its own pen registers.Nor was the District Court’s order inany way burdensome. The order pro-vided that the Company be fully reim-bursed at prevailing rates, and compli-ance with it required minimal effort onthe part of the Company and no disrup-tion to its operations.

Id. at 174–75, 98 S.Ct. 364 (citations omit-ted).

[15] The salient points that the Courthighlighted as the basis for finding a lackof unreasonable burdens in N.Y. Tel. Co.are virtually all absent here. First, Appleis not a ‘‘highly regulated public utilitywith a duty to serve the public’’—the gov-ernment does not suggest that it is subjectto greater regulation than other busi-nesses, it is not a public utility, and it has aduty is to serve its shareholders ratherthan the public. Second, Apple has indeedcontended that it is in its interest as a

private company not to provide the assis-tance sought here: Apple seeks to succeedin a competitive market by being seen toassume ‘‘a leadership role in the protectionof its customers’ personal data against anyform of improper access.’’ Apple I at 4.Further, Apple claims to fear—reasonablyor otherwise—that providing the request-ed assistance in the absence of clear legalauthority (as I conclude is lacking) ‘‘couldthreaten the trust between Apple and itscustomers and substantially tarnish theApple brand.’’ Id.

Third, unlike the pen register at issue inN.Y. Tel. Co., the assistance the govern-ment seeks here—bypassing a securitymeasure that Apple affirmatively marketsto its customers—is not something thatApple would normally do in the conduct ofits own business and is, at least now, plain-ly ‘‘offensive to it.’’ N.Y. Tel. Co., 434 U.S.at 174, 98 S.Ct. 364.34 To be sure, Apple’sview of what it finds offensive appears tohave changed since the days when it rou-tinely voiced no objection to cooperatingwith AWA orders, and the government’sdispleasure with that change is as under-standable as it is vehement. But howeverlate Apple may have come to its currentview about the way it wishes to exercise itsautonomy, the record offers no reason toquestion its sincerity.35

34. In considering the burden the requestedrelief would impose on Apple, it is entirelyappropriate to take into account the extent towhich the compromise of privacy and datasecurity that Apple promises its customersaffects not only its financial bottom line, butalso its decisions about the kind of corpora-tion it aspires to be. The fact that the govern-ment or a judge might disapprove Apple’spreference to safeguard data security and cus-tomer privacy over the stated needs of a lawenforcement agency is of no moment: in theabsence of any other legal constraint, thatchoice is Apple’s to make, and I must takeinto account the fact that an order compellingApple to abandon that choice would impose acognizable burden on the corporation that is

wholly distinct from any direct or indirectfinancial cost of compliance.

35. I thus respectfully disagree with the gov-ernment’s contention that Apple’s objection isnot ‘‘conscientious’’ but merely a matter of‘‘its concern with public relations.’’ Govt. IIIat 5. First, I see no reason why a companythat succeeds or fails based largely on itsability to maintain congenial relations withthe public—that is, with its potential custom-ers—should not be concerned about publicrelations. Moreover, for all of the govern-ment’s manifest outrage, there is simply noth-ing in the record that leads me to questionthat Apple’s recent stance against being com-pelled to assist the government in bypassingthe security it markets to its customers is


Fourth, again unlike the telephone com-pany in N.Y. Tel. Co., which ‘‘agreed tosupply the FBI with all the informationrequired to install its own pen registers[,]’’434 U.S. at 175, 98 S.Ct. 364, the recordsuggests that Apple has never offered thegovernment the information needed to by-pass an iPhone’s passcode security on itsown—and would never do so. To the con-trary, Apple is clearly staking out the posi-tion that as a matter of protecting itscustomers’ privacy and data security (andas a matter of securing the benefits itderives from doing so), it does not wantthe government or anyone else to haveaccess to the information the governmentwould compel it to use to provide therequested assistance at issue here. Applehas explicitly stated that it will complywith a lawful court order to assist in by-passing the passcode security on Feng’siPhone, see Tr. at 10, but it has neverhinted that it would prefer to simply letthe government have the information nec-essary to do so.

Fifth, yet again unlike the telephonecompany in N.Y. Tel. Co., which couldinstall a pen register ‘‘with TTT minimaleffort TTT and no disruption to its opera-tions[,]’’ 434 U.S. at 175, 98 S.Ct. 364, therecord demonstrates that bypassing thepasscode security of just one iPhone ‘‘di-verts man hours and hardware and soft-ware from Apple’s normal business oper-ations.’’ Apple I at 3. And while that

burden by itself is not substantial in thecase of ‘‘a single device in good workingorder, running an operating system earli-er than iOS 8,’’ id. the record of this casemakes clear that the burdens the govern-ment seeks to impose on Apple under theauthority of the AWA are not nearly solimited. The government has already se-cured such assistance at least 70 timesbefore filing the instant petition, it has adozen more such applications pending,and it clearly intends to continue seekingassistance that is similarly burdensome—if not far more so—for the foreseeablefuture. In this context, the government’sassurance that ‘‘any cumulative burden isminimal and likely to decrease with re-gard to the type of relief requestedhere[,]’’ Govt. II at 16 (emphasis added)is particularly unconvincing: the govern-ment predicates its argument on the factthat devices using pre-iOS 8 software arebecoming an ever smaller slice of Apple’smarket. See id. But that argumentomits the fact that the advent of morerecent operating systems has done noth-ing to slow the government’s requests—instead, the government continues to seekorders compelling Apple’s assistance inbypassing the passcode security of morerecent models and operating systems,notwithstanding the fact that such re-quests are more burdensome than theone pending here.36

anything other than a genuine reflection ofboth how it perceives its private interest incommercial success and the policy prefer-ences of its leaders. The tension between lawenforcement and data security in this caseand others like it presents a genuine dilemmafor people of good faith—indeed, in congres-sional testimony on February 25, 2016, theFBI’s Director described it as ‘‘the hardestquestion I’ve seen in government.’’ House ofRepresentatives, Permanent Select Committeeon Intelligence, Committee Hearing, 2016 WL755376 (transcript). The fact that Apple re-solves that question in a way not to the gov-

ernment’s liking does not mean that it isacting in bad faith, or even that it is necessar-ily putting selfish interests above the publicgood. As far as I can discern from the rec-ord, it means only that the parties have anhonest disagreement about how best to ac-commodate competing legitimate interests.

36. Even taking the government’s argument atface value, I find it unpersuasive becausethere are at least two reasons why a courtconsidering the reasonableness of the burdensto be imposed by compelling a private partyto assist the government under the AWA


Thus, the government’s argument thatthe burdens an AWA order here wouldimpose on Apple are as negligible as thoseimposed on the telephone company in N.Y.Tel. Co. cannot withstand scrutiny. Thegovernment’s remaining argumentsagainst a finding of burden are similarlyunpersuasive. The government essentiallyargues that having reaped the benefits ofbeing an American company, it cannotclaim to be burdened by being seen toassist the government. See Govt. II at 19(noting the ‘‘significant legal, infrastructur-al, and political benefits’’ Apple derivesfrom being an American company, as wellas its ‘‘recourse to the American courts’’and to the protection of ‘‘American lawenforcement TTT when it believes that ithas been the victim of a crime’’); id. at 19–20 (‘‘This Court should not entertain anargument that fulfilling basic civic respon-sibilities of any American citizen or compa-

ny TTT would ‘tarnish’ that person’s orcompany’s reputation.’’).

Such argument reflects poorly on a gov-ernment that exists in part to safeguardthe freedom of its citizens—acting as indi-viduals or through the organizations theycreate—to make autonomous choices abouthow best to balance societal and privateinterests in going about their lives andtheir businesses. The same argumentcould be used to condemn with equal forceany citizen’s chosen form of dissent. AllAmerican citizens and companies ‘‘derivesignificant legal, infrastructural, and politi-cal benefits from [their] status [as such,]’’id.—but that cannot mean that they arenot burdened in a legally cognizable waywhen forced unwillingly to comply withwhat they sincerely believe to be an unlaw-ful government intrusion.37

should take into account cumulative burdensbeyond the financial costs directly associatedwith carrying out that order in isolation.First, as discussed above, the authority thegovernment asks the court to exercise is es-sentially legislative in nature—and the recordmakes clear that the government has chosento rely on the judiciary to achieve such effec-tively legislative results. It is therefore all themore important for the court, if it is going toengage in such law-making based on an em-brace of the government’s understanding ofwhat is ‘‘agreeable to the usages and principleof law,’’ to exercise such authority in thesame way that a legislature would. Congresstypically enacts legislation that imposes ongo-ing burdens on private parties only after de-veloping a full and transparent record in openhearings about the costs and benefits of theproposed law, based on input from all poten-tial stakeholders. It generally does not (or, ata minimum, should not) impose such burdensbased on information received ex parte andconsidered in secret proceedings absent somecompelling reason not present here. Con-gress would undoubtedly consider in this con-text all of the potential harms to Apple, notjust the financial ones; a court should do noless. Second, a court’s decision in a casesuch as this, although plainly not controlling

in other cases, can nevertheless have someprecedential value. It is therefore entirelypossible that a decision in this case that didnot take into account the cumulative costsApple faces as the government increases itsreliance on the AWA to force it to provideinvestigative assistance in case after casewould effectively limit Apple’s ability to havea future court take such rising burdens, nomatter how great, into meaningful consider-ation.

37. In its post-hearing submission, the govern-ment discusses the significance to this case,and to the Supreme Court’s opinion in N.Y.Tel. Co., of Chief Judge Cardozo’s observationthat ‘‘the citizenry may be called upon toenforce the justice of the State, not faintly andwith lagging steps, but honestly and bravelyand with whatever implements and facilitiesare convenient and at hand.’’ Babington v.Yellow Taxi Corp., 250 N.Y. 14, 17, 164 N.E.726 (1928) (quoted in N.Y. Tel. Co., 434 U.S.at 175, 98 S.Ct. 364). As I pointed out at oralargument, Babington involved a state statutethat explicitly allowed an officer to conscriptprivate assistance. Babington, 250 N.Y. at 16,164 N.E. 726 (quoting N.Y. Penal Law (Con-sol.Laws, c. 40) § 1848: ‘‘A person who afterhaving been lawfully commanded to aid an


Similarly, the government’s contentionthat ‘‘the burden associated with compli-ance with legal process is measured on thedirect costs of compliance, not on othermore general considerations about reputa-tions or the ramifications of compliance[,]’’id. at 19, is irreconcilable with the opinionin N.Y. Tel. Co. itself. The Court in thatcase did not just cite the lack of financialburden on the telephone company; in-stead, it took pains to refute the lowerappellate court’s stated concern about the‘‘severe threat to the autonomy of thirdparties who for whatever reason prefer notto render such assistance.’’ 434 U.S. at171, 98 S.Ct. 364. Indeed, part of itsshowing in that regard was the observa-tion that the company’s installation of apen register would not be ‘‘offensive toit’’—an observation that would be whollyirrelevant, if not counter-productive, to adecision intended to establish that the onlycognizable burdens under the AWA arefinancial. Finally, the government makesno effort to explain why cognizable bur-dens should be so limited: as the Courtexplained in N.Y. Tel. Co., the AWA doesnot empower a court to impose any bur-dens that are ‘‘unreasonable’’—and it saidnothing to suggest that only financial bur-dens could prove unreasonable.

Finally, I return to the point that theSupreme Court addressed in reversing theSecond Circuit’s decision in N.Y. Tel. Co.:the concern that an AWA order compellinga private party to provide service to thegovernment the non-party finds offensivewould ‘‘pose a severe threat to [their] au-tonomy[.]’’ 434 U.S. at 171, 98 S.Ct. 364.As discussed above, the Court concludedthat no such threat was posed in that caseby the imposition of an obligation on apublic utility to perform for the govern-ment a task that it would in any eventperform in the pursuit of its own business.But the concern about whether the AWA,as construed by the government, wouldconfer on the judiciary an overbroad au-thority to override individual autonomycannot be so easily avoided in this case.Nothing in the government’s argumentssuggests any principled limit on how far acourt may go in requiring a person orcompany to violate the most deeply-rootedvalues to provide assistance to the govern-ment the court deems necessary.

To try to gauge that limit—and to see ifone even exists—I deliberately asked thegovernment at oral argument the provoca-tive question noted above, see n.34 supra,about whether a court could invoke theAWA to force a drug maker to supplylethal injection drugs notwithstanding the

officer in arresting any person TTT willfullyneglects or refuses to aid such officer is guiltyof a misdemeanor.’’). In N.Y. Tel. Co., incontrast, no such specific authority justifiedthe government’s demand for the telephonecompany’s assistance, and the question waswhether the AWA provided such authority.The government assures me that such a dis-tinction ‘‘is of no moment.’’ Govt. III at 4. Asit explains:

[T]he Supreme Court in N.Y. Telephone Co.cited Babington to emphasize the more gen-eral proposition that it is neither impropernor unusual to expect civilians to assist lawenforcement. As the N.Y. Telephone Co.opinion confirms, just as there is no impro-priety in requiring civilian assistance under

a statute, there is likewise no impropriety inrequiring civilian assistance under the AllWrits Act.

Govt. III at 4.Such argument misses an important point

by conflating substantive policy questionswith procedural questions about how policyis set. A legislature is of course free to ex-plicitly authorize law enforcement agents toconscript private assistance under such cir-cumstances as the legislature deems fit. Butcitizens are under no such obligation in theabsence of such legislation, and Babingtoncannot help a court to understand whetherthe All Writs Act can properly be read topermit a judge, rather than a legislature, tocompel such assistance.


manufacturer’s conscientious objection tocapital punishment. See Tr. at 43–48.That the government had no ready answerat oral argument to a question it deemedso inflammatory was not surprising. Buteven in its post-hearing submission, thegovernment offers nothing more than de-flection: ‘‘Resolution of the death penaltyhypothetical would depend on the particu-lar law, facts, and circumstances if such acase were to present itself.’’ Govt. III at5. That is undoubtedly true, but equallyunsatisfactory. If the government cannotexplain why the authority it seeks herecannot be used, based on the same argu-ments before this court, to force privatecitizens to commit what they believe to bethe moral equivalent of murder at thegovernment’s behest, that in itself sug-gests a reason to conclude that the govern-ment cannot establish a lack of unreason-able burden.

If, as the government would have it, theonly cognizable measure of an unreason-able burden in this case is the extent towhich Apple might have unreimbursed fi-nancial costs arising directly from thework needed to bypass the passcode secu-rity on Feng’s iPhone, then granting therequested order would not impose an un-reasonable burden. But the category ofunreasonable burdens is not nearly so nar-row, not even as described in the SupremeCourt opinion on which the government

primarily relies. Taking into account theseveral other burdens to which Apple ob-jects—burdens that are no less real orcognizable simply because they are harderto quantify—I conclude that granting thegovernment’s Application would impose anunreasonable burden on Apple.

3. Necessity

[16] The government contends that itcannot successfully search Feng’s devicewithout Apple’s assistance. See Govt. I at1–2; Govt. III at 7 (‘‘The government isunable to perform a safe passcode bypasson its own[.]’’). If that assertion is true,the government may be entitled to reliefunder the AWA if it can satisfy the re-maining statutory requirements and dis-cretionary factors. But if it is false—if thegovernment has access to resources thatwould in fact allow it to vindicate thiscourt’s jurisdiction without compelling Ap-ple to take action it finds objectionable—that fact would weigh heavily againstgranting relief. As the movant, it is thegovernment’s burden to establish the fac-tual assertions upon which it claims to beentitled to relief. I conclude that it hasfailed to do so because of the conflictingevidence in the record about the availabili-ty, from private sources other than Apple,of technology that would allow the govern-ment to bypass the passcode security onFeng’s device.38

38. Because I conclude that the governmenthas failed to establish necessity for the rea-sons set forth below, I need not determinewhether its refusal to disclose whether federalintelligence agencies have the ability to un-lock Feng’s device is an independent basis forfinding a lack of necessity. While the govern-ment’s hesitation to reveal what its intelli-gence agencies can and cannot do is entirelyunderstandable, and may well be an appropri-ate exercise of discretion to promote nationalsecurity, that does not mean that the choicemust be cost-free for the government in thislitigation. In some contexts, such as wherethe law imposes an affirmative disclosure ob-

ligation on the government, it is reasonable torestrict that obligation to pertinent parts ofthe executive branch rather than insist thatthe government is a unitary whole. See, e.g.,United States v. Avellino, 136 F.3d 249, 255(2d Cir.1998) (for purposes of the prohibitionagainst the suppression of materially exculpa-tory information in a criminal case, imputingto each federal prosecutor constructiveknowledge of any information known to anygovernment office ‘‘would inappropriately TTTadopt a monolithic view of government thatwould condemn the prosecution of criminalcases to a state of paralysis’’) (internal quota-tion marks and citations omitted). But this


In its Application in this case, the gov-ernment originally asserted that its agentscannot bypass the passcode security of anApple iPhone. See Govt. I at 1–2. Twomonths earlier, however, in opposing asuppression motion in an unrelated crimi-nal case in this district, the governmentsaid something quite different:

[T]he lack of a passcode is not fatal tothe government’s ability to obtain therecords. That is because [the Depart-ment of Homeland Security (‘‘DHS’’),Homeland Security Investigations(‘‘HSI’’) ] is in possession of technologythat would allow its forensic techniciansto override the passcode security featureon the Subject iPhone and obtain thedata contained therein. In other words,even if HSI agents did not have thedefendant’s passcode, they would never-theless have been able to obtain therecords stored in the Subject iPhoneusing specialized software. The soft-ware works to bypass the passcode en-try requirement and ‘‘unlock’’ the cellu-lar telephone without having to enterthe code. Once the device is ‘‘unlocked’’

all records in it can be accessed andcopied.

United States v. Adamou Djibo, 15–CR–0088 (SJ), DE 27 at 5 (government’s letterto court dated July 9, 2015). At a hearingon the suppression motion in Djibo, thegovernment presented the testimony of aDHS expert who testified that althoughthe ‘‘IP–Box’’ technology on which the gov-ernment relied was both ‘‘fairly new’’ and‘‘finicky,’’ he and others had succeeded inusing that technology to bypass passcodesecurity on some Apple devices, if not theprecise kind seized from Djibo. See Unit-ed States v. Djibo, ––– F.Supp.3d ––––,––––, 2015 WL 9274916, at *6 (E.D.N.Y.Dec. 16, 2015).39

In response to my questions at oral ar-gument about the tension between the fac-tual assertions the government had offeredin the two cases, the government profferedyet a third. Specifically, the governmentwrote:

The government has consulted with thetestifying agent in Djibo, who noted thatthe government’s ability to bypass thepasscode on an iPhone is highly device-specific, and depends in part on the spe-

case is not a matter of the government, inresponse to some external obligation, seekingto be excused from an unreasonable burden.It is instead a matter of determining whetherthe government, in coming forward to seekaffirmative relief that requires a factual show-ing, can be allowed to withhold informationthat might demonstrate the falsity of its asser-tion. As a legal matter, a court might deter-mine that an intelligence agency’s ability toaccomplish the technical task at issue heredoes not render Apple’s assistance unneces-sary. But to the extent the government seeksto avoid having a court make that legal deci-sion by offering the unconditional assertionthat ‘‘[t]he government is unable to perform asafe passcode bypass on its own[,]’’ Govt. IIIat 7 (emphasis added), it has an obligation toprove that assertion rather than simply tellthe court that such inquiry is off limits. Seeid. at 8 (‘‘The government is not required toconsult with intelligence agencies[.]’’).

39. The device at issue in Djibo was ‘‘aniPhone 5 installed with the iOS 8.1.2 operat-ing system.’’ Id. The parties appear to agreethat the passcode security on that operatingsystem is harder to bypass—even for Apple—than the software (an iteration of iOS 7) in-stalled on Feng’s iPhone 5s. Indeed, at theoral argument in this case, Apple stated thatwhile it could indeed bypass the passcodesecurity on Feng’s device, it would be impos-sible to do so on any device running iOS 8 orlater versions of the operating system. Tr. at58. As the public record of the Californiaaction reveals, the government now appearsto believe otherwise. See DE 27–2 (govern-ment’s memorandum in the California action)at 4–8 (describing proposed method for Appleto use in bypassing passcode security on adevice running iOS 9).


cific hardware and software in place.The investigators in this case have ex-amined the possibility of using variousthird-party technologies, including thehacking tool referenced in Djibo, anddetermined that, in this case, using suchtechnology on the Target Phone [i.e.,Feng’s iPhone] presents a non-trivialrisk of data destruction. Specifically,the tool, which serially tests various pas-scodes until detecting the correct one,could activate the ‘‘erase data’’ feature ofthe iPhone and render the data in theTarget Phone permanently inaccessible.By contrast, in this case, Apple has theunique ability to safely perform a pas-scode bypass on the Target Phone with-out risking such data destruction.

Govt. III at 8. In short, the government,having previously stated both that it can-not bypass an Apple’s passcode securitywithout Apple’s help and that it can do so,now says that it depends—and that what itdepends on is not just which device andwhich operating system is in question, butalso on which government expert makesthe attempt.

In Djiba, the result of that morass ofconflicting statements was a finding thatthe government had failed to establish thatit would inevitably have succeeded in by-passing the passcode security on Djibo’s

iPhone. Djiba, 151 F.Supp.3d 297 at 310–311, 2015 WL 9274916, at *11. That resultdoes not remotely establish the propositionthe government supports here—namely,that it is impossible for it to bypass thesecurity of an earlier operating systemwithout Apple’s help. What it does estab-lish is simply that the government hasmade so many conflicting statements inthe two cases as to render any single oneof them unreliable. Because it is the gov-ernment’s burden, as the movant seekingrelief, to demonstrate a basis for grantingits request, I necessarily conclude that ithas failed to establish that the help itseeks from Apple is necessary for pur-poses of the test under N.Y. Tel. Ca.40

III. Conclusion

In deciding this motion, I offer no opin-ion as to whether, in the circumstances ofthis case or others, the government’s legit-imate interest in ensuring that no door istoo strong to resist lawful entry shouldprevail against the equally legitimate so-cietal interests arrayed against it here.Those competing values extend beyond theindividual’s interest in vindicating reason-able expectations of privacy—which is notdirectly implicated where, as here, it mustgive way to the mandate of a lawful war-rant. They include the commercial inter-

40. Even accepting at face value the govern-ment’s most recent statement—that the gov-ernment has access to third-party technologythat might work in this case but that mightalso risk data destruction—the history re-counted above undermines the government’sassertion of necessity in a different way. Thatis, read in the light of its most recent state-ment, the government’s position in Djiba wasthat it would have inevitably discovered theevidence on the defendant’s iPhone because itwould have used the IP–Box technology tosecure it—notwithstanding the risk that doingso might destroy the evidence being sought(the way in which that proposition under-mines the government’s assertion of inevit-able discovery is an issue in Djiba but not in

this case). If that is so, that means that thereare some cases—demonstrably including Dji-ba—in which Apple’s help in bypassing aniPhone’s passcode security is unnecessary notbecause the government will inevitably suc-ceed in securing evidence on its own, butrather because the risk of destroying evidencein the attempt to seize it is acceptable. Thatbegs the question, which the governmentleaves unanswered here, why such a risk wasacceptable in prosecuting Djibo but not ac-ceptable in prosecuting Feng. Thus, even tak-ing the government at the most recent of itswords, there is no showing that Apple’s assis-tance will accomplish something that the gov-ernment itself deems to be a necessity.


est in conducting a lawful business as itsowners deem most productive, free of po-tentially harmful government intrusion;and the far more fundamental and univer-sal interest—important to individuals as amatter of safety, to businesses as a matterof competitive fairness, and to society as awhole as a matter of national security—inshielding sensitive electronically storeddata from the myriad harms, great andsmall, that unauthorized access and misusecan cause.

How best to balance those interests is amatter of critical importance to our soci-ety, and the need for an answer becomesmore pressing daily, as the tide of techno-logical advance flows ever farther past theboundaries of what seemed possible even afew decades ago. But that debate musthappen today, and it must take placeamong legislators who are equipped toconsider the technological and culturalrealities of a world their predecessorscould not begin to conceive. It would be-tray our constitutional heritage and ourpeople’s claim to democratic governancefor a judge to pretend that our Foundersalready had that debate, and ended it, in1789.41

Ultimately, the question to be answeredin this matter, and in others like it acrossthe country, is not whether the govern-

ment should be able to force Apple to helpit unlock a specific device; it is insteadwhether the All Writs Act resolves thatissue and many others like it yet to come.For the reasons set forth above, I concludethat it does not. The government’s motionis denied.

SO ORDERED.

,

VIS VIRES GROUP, INC., Plaintiff,

v.

ENDONOVO THERAPEUTICS, INC.and Alan Collier, Defendants.

16–cv–470 (ADS)(AYS)

United States District Court,E.D. New York.

Signed March 1, 2016

Background: Holder of promissory notefiled suit against promisor alleging breachof contract provision permitting conversionof unpaid principal amount of note intoshares of common stock in promisor’s com-

41. Indeed, as FBI Director Comey observedin the context of the California action:

[W]e have awesome new technology thatcreates a serious tension between two val-ues we all treasure: privacy and safety.That tension should not be resolved by cor-porationsTTTT It also should not be re-solved by the FBITTTT It should be re-solved by the American people decidinghow we want to govern ourselves in aworld we have never seen beforeTTTT Ialso hope all Americans will participate inthe long conversation we must have abouthow to both embrace the technology welove and get the safety we need.

James Comey, We Could Not Look the Surviv-ors in the Eye if We Did Not Follow this Lead,

Lawfare (Feb. 21, 2016, 9:03 p.m.) https://www.lawfareblog.com/we-could-not-look-survivors-eye-if-we-did-not-follow-lead. That‘‘long conversation’’ among ‘‘people decidinghow we want to govern ourselves in a worldwe have never seen before’’ will of course bemoot if courts presume to make that decisionfor the American people based on a perceivedassignment of extraordinary authority by 18thCentury legislators. Director Comey’s salu-tary call for meaningful public debate cantherefore be achieved only by recognizing thatthe All Writs Act does not serve as a mecha-nism for courts to give the executive branchauthority it fails to secure from the legisla-ture.

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