CA11: All Writs Act could be used to get Apple to unlock iPad (which apparently is now really easy for them)

The All Writs Act was properly used to get Apple to unlock defendants’ iPad. Under NY Telephone, “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.” They were satisfied here (going on at length). All Apple had to do was plug the iPad into a computer with their software and transfer the data to a flash drive. United States v. Blake, 2017 U.S. App. LEXIS 15891 (11th Cir. Aug. 21, 2017). [It would appear that Apple put a backdoor into its operating system to make this so easy for them. Remember the first time they objected so strenuously?]:

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., Click for Enhanced Coverage Linking SearchesApple iOS Software License Agreement 1 (2016), http://apple.co/2nl946W; Greg Kumparak, Apple Explains Exactly How Secure iMessage Really Is, TechCrunch (Feb. 27, 2014), http://tcrn.ch/2kNxy3q. 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.

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