CA11: Order to Apple to unlock iPad was reasonable under All Writs Act and New York Telephone

The district court’s order to Apple to unlock defendant’s iPad was reasonable and appropriate under the All Writs Act and United States v. New York Telephone Co. Also, seizing an entire Facebook account wasn’t “open and shut” a general warrant, and the government gets the benefit of the good faith exception. United States v. Blake, 2017 U.S. App. LEXIS 15891 (11th Cir. Aug. 21, 2017):

The All Writs Act provides in full:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

28 U.S.C. § 1651(a). The Supreme Court has recognized five requirements that must be met before a court can compel under the All Writs Act the assistance of a third party in a criminal investigation: (1) the order must be necessary or appropriate to effectuate a previously issued order, (2) it must not be covered by another statute, (3) it must not be inconsistent with the intent of Congress, (4) the third party must not be too far removed from the underlying case, and (5) the burden imposed on the third party must not be unreasonable. See United States v. N.Y. Tel. Co., 434 U.S. 159, 172-78, 98 S. Ct. 364, 372-75, 54 L. Ed. 2d 376 (1977).

1. Necessary or Appropriate

The first requirement for use of the All Writs Act is that the use be necessary or appropriate to carry out an issued order. See id. at 172, 98 S. Ct. at 372 (“This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued ….”). The bypass order in this case was necessary or appropriate because there was no other way for the FBI to execute the district court’s order to search the contents of the iPad. See In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346-49 (11th Cir. 2012) (holding that compelling a defendant to produce data protected by his password without providing constitutionally sufficient immunity violates the Fifth Amendment).

2. Not Otherwise Covered by Statute

The authority granted by the All Writs Act is broad but not boundless. The Act “is a residual source of authority” that permits issuing writs only if they “are not otherwise covered by statute.” Penn. Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361, 88 L. Ed. 2d 189 (1985). It is a gap filler. “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. And where Congress has proscribed a certain type of judicial action, the Act cannot overcome that proscription. See id. The bypass order meets this requirement because no statute expressly permits or prohibits it.

3. Not Inconsistent with Intent of Congress

Even where, as here, no statute expressly permits or prohibits a particular judicial action, the court cannot always use the Act to fill the gap. Any order issued under the All Writs Act must still be “consistent with the intent of Congress.” See N.Y. Tel., 434 U.S. at 172, 98 S. Ct. at 372. To determine if a judicial action is consistent with congressional intent, it is not enough to ask whether there is an on-point statute. We must also look at laws that are not directly on point but that speak to similar issues in order to determine whether the proposed judicial action is in line with congressional intent. See id. 172, 176-78, 98 S. Ct. at 372, 374-75. If the legislative context bearing on the proposed action suggests that Congress did not intend for the court to have a given power, taking the action under the All Writs Act is inconsistent with congressional intent and cannot be the basis for the action. See id.

The Supreme Court’s decision in New York Telephone illustrates this principle. In that case the district court had issued an order under the All Writs Act requiring a phone company to assist the FBI in installing pen registers on certain phone lines. Id. at 161-62, 98 S. Ct. at 367. The Supreme Court held the order was consistent with congressional intent for two reasons. Id. at 176-78, 98 S. Ct. at 374-75. First, the legislative history of Title III of the Omnibus Crime Control and Safe Streets Act, which governs the issuance of wiretaps, makes clear that Congress intended for courts to be able to order the installation of pen registers. See id. at 176-77, 98 S. Ct. at 374. Second, amendments to Title III had authorized courts to compel assistance in installing wiretaps, though they did not specifically mention pen registers. Id. at 176-77, 98 S. Ct. at 374-75. The Court reasoned that Congress likewise intended for courts to be able to compel assistance in installing pen registers when assistance was necessary. Id. at 177-78, 98 S. Ct. at 374-75. As a result, the Court held that the district court’s order was within the authority granted by the All Writs Act. Id. at 177-78, 98 S. Ct. at 375.

Blake and Moore argue that the New York Telephone case is distinguishable because, unlike the pen register order involved in that case, the issuance of the bypass order in this case is contrary to congressional intent. They rely on the Communications Assistance for Law Enforcement Act (CALEA), 47 U.S.C. §§ 1001-1010, for that proposition. Section 1002, which is part of CALEA, requires “telecommunications carrier[s]” to provide certain forms of assistance to law enforcement, while exempting “information services” companies — a category that includes Apple — from those same requirements. See id. §§ 1001(6), 1002(a), (b)(2). Blake and Moore assert that the “information services” exemption in § 1002 shows that Congress intends for companies like Apple to be insulated from court-ordered law enforcement cooperation through bypass orders.

The problem is that the § 1002 requirements are all about design choices and ensuring that telephone networks “are capable of” delivering evidence to law enforcement. See id. § 1002(a). If this case were about a court order forcing Apple to initially design its devices so that law enforcement would be capable of accessing them in the future, § 1002′s exemption of information services companies would be relevant. But that is not what this case is about. It is, instead, about a device that has already been designed, manufactured, sold, and used, and about how to access the information on that device. In light of the distinction between initial design and later access, § 1002 does not show that bypass orders are inconsistent with congressional intent.

4. Third Party Not Too Far Removed from Underlying Case

The fourth requirement for use of the All Writs Act, at least for compelling a non-party in a criminal case, is that the non-party not be “so far removed from the underlying controversy that its assistance could not be permissibly compelled.” N.Y. Tel., 434 U.S. at 174, 98 S. Ct. at 373. Blake and Moore argue that “Apple’s connection to the case [is] merely that it … originally manufactured the iPad,” so it is too far removed for its assistance to be compelled. That argument misstates the technology. Apple continued being connected to Blake and Moore’s use of the iPad even after they bought it: the iPad ran on an operating system owned by Apple (Blake and Moore were only licensing it); Apple servers conveyed messages sent from the iPad; and Apple servers backed up the iPad’s data. See Apple, Inc., Apple iOS Software License Agreement 1 (2016),; Greg Kumparak, Apple Explains Exactly How Secure iMessage Really Is, TechCrunch (Feb. 27, 2014), Apple’s continued connection to the case means that it was not so far removed from the underlying controversy that its assistance could not be compelled.

5. Not Unreasonable Burden on Third Party

The final New York Telephone requirement is that any burden imposed on the compelled party must not be “unreasonable.” N.Y. Tel., 434 U.S. at 172, 98 S. Ct. at 372. To comply with the bypass order, Apple simply had to have an employee plug the iPad into a special computer and then transfer the iPad’s data to a thumb drive. That is not an unreasonable burden, especially in light of the fact that Apple did not object to the bypass order’s requirements.

6. Summary

The bypass order was necessary or appropriate to carry out the search warrant the district court had issued, the assistance sought was not specifically addressed by another statute, the bypass order was not inconsistent with Congress’ intent, Apple was not too far removed from the underlying controversy, and the burden the order imposed on it was not unreasonable. See id. at 172-74, 98 S. Ct. at 372-73. It follows that the bypass order did not exceed the district court’s authority and the evidence gathered as a result of that order did not have to be suppressed.

. . .

The Facebook warrants are another matter. They required disclosure to the government of virtually every kind of data that could be found in a social media account. See p. 4, above. And unnecessarily so. With respect to private instant messages, for example, the warrants could have limited the request to messages sent to or from persons suspected at that time of being prostitutes or customers. And the warrants should have requested data only from the period of time during which Moore was suspected of taking part in the prostitution conspiracy. Disclosures consistent with those limitations might then have provided probable cause for a broader, although still targeted, search of Moore’s Facebook account. That procedure would have undermined any claim that the Facebook warrants were the internet-era version of a “general warrant.” See Coolidge, 403 U.S. at 467, 91 S. Ct. at 2038; cf. Riley v. California, 573 U.S. ___, 134 S. Ct. 2473, 2488-91, 189 L. Ed. 2d 430 (2014) (“The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions ….”).

We are not convinced that the cases the government relies on, which involve seizing an entire hard drive located in the defendant’s home and then later searching it at the government’s offices, are applicable in the social media account context. See, e.g., United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012); United States v. Stabile, 633 F.3d 219, 234 (3d Cir. 2011). The means of hiding evidence on a hard drive — obscure folders, misnamed files, encrypted data — are not currently possible in the context of a Facebook account. Hard drive searches require time-consuming electronic forensic investigation with special equipment, and conducting that kind of search in the defendant’s home would be impractical, if not impossible. By contrast, when it comes to Facebook account searches, the government need only send a request with the specific data sought and Facebook will respond with precisely that data. See generally Information for Law Enforcement Authorities, Facebook, (last visited July 27, 2017). That procedure does not appear to be impractical for Facebook or for the government. Facebook produced data in response to over 9500 search warrants in the six-month period between July and December 2015. United States Law Enforcement Requests for Data, Facebook, (last visited July 27, 2017).

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