Apple - DOJ Motion To Compel

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 1 of 35 Page ID #:1

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EILEEN M. DECKER
United States Attorney
PATRICIA A. DONAHUE
Assistant United States Attorney
Chief , National Security Division
TRACY L. WILKISON (California Bar No. 184948)
Chief , Cyber and Intellectual Property Crimes Section
ALLEN W. CH IU (California Bar No. 240516)
Terrorism and Export Crimes Section
15 00 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone:
(2 1 3) 894-0622/2435
Facsimile:
(213) 894 - 8601
Email:
Tracy .Wilkison@usdoj . gov
Allen.Chiu@usdo j.gov

UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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("".)
c-.>r
Clerk
DIST.
CENTRAL
Attorneys for Applicant

UNITED STATES OF AMERICA
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BY
IN THE MATTER OF THE SEARCH OF

AN APPLE IPHONE SEIZED DURING
THE
OF A SEARCH
WARRANT ON A BLACK LEXUS IS300,
CALIFORNIA LICENSE PLATE
35KGD203
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CM 16 i o
ED No.
(SP)
GOVERNMENT'S MOTION TO COMPEL

APPLE INC. TO COMPLY WITH THIS
COURT'S FEBRUARY 16, 2016 ORDER
COMPELLING ASSISTANCE IN SEARCH;
EXHIBIT
Hearing Date: March 22, 2016
Hearing Time: 1:00 p.m .
Location: Courtroom of the Hon.
Sheri Pym
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The United States of America , by and through its counsel of
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record, the United States Attorney for the Central District of
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California, and Assistant United States Attorneys Tracy L. Wilkison
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and Allen
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("Apple" ) to Comply with this Court's February 16, 20 1 6 Order
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Compelling Apple To Assist Agents In Its Search.
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w.
Chiu, hereby files its Motion to Compel Apple Inc.
This Motion is based upon the attached memorandum of points and
authoritiesr the attached exhibit
including the application and order compelling Apple to assist the
FBI and the underlying search warrantr and such further evidence and
argument as the Court may permit.
the files and records in this case
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Dated: February 19
2016
Respectfully submitted(
EILEEN M. DECKER
United States Attorney
PATRICIA A. DONAHUE
Chiefr National Security Division
Tracy Wilkison signature
ALLEN W. CHIU
Assistant ~i'!!'ed,,~ates Attorneys
Attorneys for Applicant
UNITED STATES OF AMERICA
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TABLE OF CONTENTS
DESCRIPTION
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. THE COURT SHOULD ISSUE AN ORDER COMPELLING APPLE TO COMPLY

WITH ITS ORDER REQUIRING ASSISTANCE WITH THE FBI'S SEARCH
OF THE SUBJECT DEVICE PURSUANT TO THE ALL WRITS ACT . . . . . . . . . . . . 7
A.
PAGE
This Court's All Writs Act Order is Lawful and Binding .... 7
10
1.
The All Writs Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
11
2.
Apple is not "far removed 11 from this matter . . . . . . . . . 10
12
3.
The Order does not place an unreasonable burden

on Apple . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.
Apple's assistance is necessary to effectuate the

warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.
Apple's Potential Marketing Concerns Provide

Insufficient Grounds to Disregard a Duly Issued
Court Order Following a Warrant Based on a
Finding of Probable Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.
Public Policy Favors Enforcing of the Order . . . . . . . . . 21
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B.
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IV.
Congress has Not Limited this Court's Authority to

Issue an All Writs Act Order to Apple . . . . . . . . . . . . . . . . . . . . 21
1.
No statute addresses data extraction from a

passcode-locked cell phone . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.
Congressional inaction does not deprive courts of

their authority under the All Writs Act . . . . . . . . . . . . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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TABLE OF AUTHORITIES
DESCRIPTION
FEDERAL CASES
Central Bank of Denver v. First Interstate Bank of Denver,

511 u.s. 164 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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12
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24
PAGE
General Construction Company v. Castro,

401 F. 3d 963 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
In re Application of the United States for an Order
Directing a Provider of Communication Services to Provide
Technical Assistance to the DEA, 2015 WL 5233551, at *4-5
(D.P.R. Aug. 27, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
In re Application of United States for an Order Authorizing an
In-Progress Trace of Wire Commc'ns over Tel. Facilities
(Mountain Bell), 616 F.2d 1122 (9th Cir. 1980) ........... . passim
In re Application of United States for an Order Directing X to
Provide Access to Videotapes (Access to Videotapes),
2003 WL 22053105, at *3 (D. Md. Aug. 22, 2003)
(unpublished) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
In re Order Requiring [XXX], Inc. to Assist in the Execution
of a Search Warrant Issued by This Court by Unlocking a
Cellphone (In re XXX), 2014 WL 5510865, at *2 (S.D.N.Y.
Oct. 31, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15
Konop v. Hawaiian Airlines, Inc.,
302 F. 3d 868 (9th Cir. 2002) .................................. 22
Pennsylvania Bureau of Correction v. United States Marshals
Service,
474 u.s. 34 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 22, 24
Plum Creek Lumber Co. v. Hutton,
608 F.2d 1283 (9th Cir. 1979) .................................. 7
Riley v. California,
134 S. Ct. 2473
(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Catoggio,

698 F. 3d 64 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
25
United States v. Craft,

535 u.s. 274 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
26
United States v. Fricosu,

841 F.Supp.2d 1232 (D. Co. 2012) .............................. 17
27
28
ii
1
2
3
4
5
United States v. Hall,

583 F. Supp. 717 (E.D. Va. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
United States v. Li,
55 F.3d 325, 329
(7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Navarro,

No. 13-CR 5525, ECF No. 39
(W.D. Wa. Nov. 13, 2013) . . . . . . . . . . . . 9
United States v. New York Telephone Co.,

434 U.S. 159 ( 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
FEDERAL STATUTES
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u.s.c.
2510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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u.s.c.
3103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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u.s.c.
1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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47
u.s.c.
1001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12
47
u.s.c.
1002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,
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MEMORANDUM OF POINTS AND AUTHORITIES

I.
INTRODUCTION
Rather than assist the effort to fully investigate a deadly
terrorist attack by obeying this Court's Order of February 16, 2016,
Apple has responded by publicly repudiating that Order.
1.
technology, rather th2n the law, to control access to data which has
been found by this Court to be warranted for an important
investigation.
See Exhibit
Apple has attempted to design and market its products to allow
Despite its efforts, Apple nonetheless retains the
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technical ability to comply with the Order, and so should be required
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to obey it.
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Before Syed Rizwan Farook ("Farook") and his wife Tafsheen Malik
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shot and killed 14 people and injured 22 others at the Inland
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Regional Center in San Bernardino, Farook's employer issued him an
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iPhone.
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iPhone during the investigation into the massacre.
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has reason to believe that Farook used that iPhone to communicate
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with some of the very people whom he and Malik murdered.
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may contain critical communications and data prior to and around the
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time of the shooting that, thus far:
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may reside solely on the phonei and (3) cannot be accessed by any
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other means known to either the government or Apple.
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obtained a warrant to search the iPhone, and the owner of the iPhone,
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Farook's employer, also gave the FBI its consent to the search.
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Because the iPhone was locked, the government subsequently sought
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Apple's help in its efforts to execute the lawfully issued search
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warrant.
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The Federal Bureau of Investigation ("FBI") recovered that
Apple refused.
(1)
The government
The phone
has not been accessedi
(2)
The FBI
Apple left the government with no option other than to apply to
this Court for the Order issued on February 16
requires Apple to assist the FBI with respect to this single iPhone
used by Farook by providing the FBI with the opportunity to determine
the passcode.
alleges/ require Apple to create or provide a "back door
iPhone; it does not provide "hackers and criminals
iPhones; it does not require Apple to "hack [its] own usersrr or to
"decrypt
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2016.
The Order
The Order does notr as Apple 1 s public statement
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to every
access to
its own phones; it does not give the government "the power
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to reach into anyoners device
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authorization; and it does not compromise the security of personal
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information.
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to retain custody of its software at all timesr and it gives Apple
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flexibility in the manner in which it provides assistance.
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the software never has to come into the government S custody.
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See Exhibit 1.
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without a warrant or court
To the contrary/ the Order allows Apple
In factr
In the pastr Apple has consistently complied with a significant
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number of orders issued pursuant to the All Writs Act to facilitate
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the execution of search warrants on Apple devices running earlier
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versions of iOS.
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warrant is therefore not unprecedented; Apple itself has recognized
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it for years.
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statements by Apple r lA\pple r s current refusal to comply with the
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Court S Order, despite the technical feasibility of doing
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The use of the All Writs Act to facilitate a
Based on Applers recent public statement and other
instead
S0,
Apple s Legal Process Guidelines continue to state that Apple

will provide assistance with unlocking devices running iOS versions
earlier than 8.0, and advises as to what language to include in the
order. See "Extracting Data from Passcode Locked iOS DeviceS
Apple
Legal Process Guidelines III (I) (updated September 29 2015) r
available at http://www.apple.com/privacy/docs/legal-processguidelines-us.pdf.
However/ Apple has informed another court that it
now objects to providing such assistance.
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appears to be based on its concern for its business model and public
brand marketing strategy.
Accordingly, the government now brings this motion to compel.
While the Order includes the provision that "to the extent that Apple
believes that compliance with this Order would be unreasonably
burdensome, it may make an application to this Court for relief
within five business days of receipt of the Order." Apple's public
statement makes clear that Apple will not comply with the Court's
Order.
The government does not seek to deny Apple its right to be
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heard, and expects these issues to be fully briefed before the Court;
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however, the urgency of this investigation requires this motion now
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that Apple has made its intention not to comply patently clear. 3
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This aspect of the investigation into the December 2, 2015 terrorist
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attack must move forward.
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II.
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STATEMENT OF FACTS
As set forth in the government's application for the All Writs

Act Order, and the Declaration of FBI Supervisory Special Agent
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("SSA") Christopher Pluhar, which was attached thereto, both of which
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were filed on February 16, 2016, the FBI has been investigating the
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As Apple has stated on its web page, "Our commitment to

customer privacy doesn't stop because of a government information
request. ... Unlike our competitors, Apple cannot bypass your passcode
and therefore cannot access this data.
So it's not technically
feasible for us to respond to government warrants for the extraction
of this data from devices in their possession running iOS8."
(https://web.archive.org/web/20140918023950/http://www.apple.com/priv
acy/government-informaton-requests/).
Notably, notwithstanding this
previous statement, Apple concedes that it has retained the ability
to do as the Court ordered.
Although a separate order compelling Apple's compliance with
this Court's February 16, 2016, order is not legally necessary, in
light of Apple's publicly stated "[o]pposing [of] this order" and its
stated interest in adversarial testing of the order's legal merits,
the government files this noticed motion to provide Apple with the
due process and adversarial testing it seeks.
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December 2, 2015 mass murder of 14 people, and the shooting and
injuring of 22 others, at the Inland Regional Center ("IRC") in San
Bernardino, California, and the participation by Farook and his wife
Malik in that crime.
shoot-out after a pursuit with law enforcement.
Farook and Malik died later that day in a
Since that time, the FBI has been tirelessly investigating the
precise role of those who may have been involved in the attack.
part of this investigation, the FBI obtained search warrants to
search, among other locations and items, the digital devices and
As
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online accounts of Farook and Malik.
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has discovered crucial information about the attack.
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the FBI discovered that on December 2, 2015, at approximately 11:14
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a.m., a post on a Facebook page associated with Malik stated, "We
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pledge allegiance to Khalifa bu bkr al bhaghdadi al quraishi,"
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referring to Abu Bakr Al Baghdadi, the leader of Islamic State of
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Iraq and the Levant ("ISIL"), also referred to as the Islamic State
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("IS"), or the Islamic State of Iraq and al-sham ("ISIS"), or Daesh.
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ISIL is designated as a foreign terrorist organization by the United
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States Department of State and has been so designated since December
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2004.
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resulted in the discovery of thousands of rounds of ammunition and
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over a dozen pipe bombs.
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Through those searches, the FBI

For example,
Moreover, a search warrant executed at Farook's residence
In addition, as part of the FBI's investigation, on December 3,
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2015, the Honorable David T. Bristow, United States Magistrate Judge,
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issued a search warrant in Docket Number ED 15-0451M for a black
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Lexus IS300, which was a vehicle that Farook used.
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parked outside of his residence where the thousands of rounds of
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ammunition and pipe bombs were found.

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The vehicle was
The search warrant for the
vehicle also ordered the search of digital devices located within it.
Inside the vehicle the FBI found a cellular telephone of an Apple
make: iPhone 5C, Model: A1532, P/N:MGFG2LL/A, S/N:FFMNQ3MTG2DJ,
IMEI:358820052301412, on the Verizon Network (the "SUBJECT DEVICE")
The SUBJECT DEVICE is owned by Farook's employer at the San
Bernardino County Department of Public Health ("SBCDPH"), and was
assigned to, and used by, Farook as part of his employment.
SBCDPH provided the government its consent to search the SUBJECT
DEVICE and to Apple's assistance with that search. 4
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The
Nonetheless, despite the search warrant ordered by the Court and
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the owner's consent to search the SUBJECT DEVICE, the FBI has been
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unable to search the SUBJECT DEVICE because it is "locked" or secured
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with a user-determined, numeric passcode.
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has been unable to make attempts to determine the passcode to access
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the SUBJECT DEVICE because Apple has written, or "coded," its
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operating systems with a user-enabled "auto-erase function" that
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would, if enabled, result in the permanent destruction of the
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required encryption key material after 10 failed attempts at the
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entering the correct passcode (meaning that, after 10 failed
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attempts, the information on the device becomes permanently
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inaccessible) .
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More to the point, the FBI
The information and data contained on the SUBJECT DEVICE is of
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particular concern to the government because, while evidence found on
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the iCloud account associated with the SUBJECT DEVICE indicates that
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Farook communicated with victims who were later killed during the
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In addition, SBCDPH has a written policy that all digital

devices are subject to search at any time by the SBCDPH, which
Farook accepted via signature upon employment.
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shootings on December 2, 2015, the backup iCloud data which the
government has been able to obtain for the account ends on October
19, 2015.
that Farook communicated with Malik using the SUBJECT "DEVICEE between
July and November 2015, but this information is not found in the
backup iCloud data.
communications and data prior to and around the time of the shooting
that thus far has not been accessed, may reside solely on the SUBJECT
DEVICE; and cannot be accessed by any other means known to either the
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In addition, toll records for the SUBJECT DEVICE establish
Accordingly, there may be critical
government or Apple.
When the government first realized that Apple retained the means
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to obtain that data from the SUBJECT DEVICE and that due to the way
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that Apple created the software Apple was the only means of obtaining
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that data, the government sought Apple's voluntary assistance.
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rejected the government's request, although it conceded that it had
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the technical capability to help.
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alternative, on February 16, 2016, the government applied for- and
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this Court subsequently issued - an Order pursuant to the All Writs
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Act, compelling Apple to assist the FBI in its search of the SUBJECT
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DEVICE.
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Apple
As a result, without any other
After the government served this Court's Order on Apple, Apple
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issued a public statement responding directly to the Order.
See
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Exhibit 1.
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lacks the technical capability to execute the Order, that it is not
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essential to gaining access into the iPhone, or that it would be too
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time- or labor-intensive.
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combination of: a perceived negative impact on its reputation and
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marketing strategy were it to provide the ordered assistance to the
In that statement, Apple again did not assert that it
Rather, Apple appears to object based on a
government, numerous mischaracterizations of the requirements of the
Order, and an incorrect understanding of the All Writs Act.
III. THE COURT SHOULD ISSUE AN ORDER COMPELLING APPLE TO COMPLY WITH
ITS ORDER REQUIRING ASSISTANCE WITH THE FBI'S SEARCH OF THE
SUBJECT DEVICE PURSUANT TO THE ALL WRITS ACT
This Court's All Writs Act Order is Lawful and Binding
A.
To the extent that Apple objects that the Court does not have
authority under the All Writs Act to compel Apple to assist in the
execution of a lawfully obtained search warrant, this objection fails
because the authority to require reasonable third-party assistance
10
that is necessary to execute a warrant is well-established, and no
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provision of any other law or any judicial decision justifies
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limitation of that All Writs Act authority.
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comply with the Order would frustrate the execution of a valid
14
warrant and thwart the public interest in a full and complete
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investigation of a horrific act of terrorism.
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To allow Apple not to
The All Writs Act
1.
The All Writs Act provides in relevant part that "all courts
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established by Act of Congress may issue all writs necessary or
19
appropriate in aid of their respective jurisdictions and agreeable to
20
the usages and principles of law."
21
Supreme Court explained,
22
authority to issue writs that are not otherwise covered by statute."
23
Pennsylvania Bureau of Correction v. United States Marshals Service,
24
474 U.S. 34, 43
25
the power,
26
provide nonburdensome technical assistance to law enforcement
27
officers."
28
Cir. 1979)
(1985).
28 U.S.C.
1651(a).
As the
"[t]he All Writs Act is a residual source of
Pursuant to the All Writs Act, the Court has
"in aid of a valid warrant, to order a third party to
Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th
(citing United States v. New York Telephone Co., 434 U.S.
7
159 (1977)).
The All Writs Act permits a court, in its "sound
judgment," to issue orders necessary "to achieve the rational ends of
law" and "the ends of justice entrusted to it."
Co., 434 U.S. at 172-73 (citations and internal quotation marks
omitted) .
conformity with these principles."
v. Catoggio, 698 F.3d 64, 67 (2d Cir. 2012)
significant flexibility in exercising their authority under the
Act.")
New York Telephone
Courts must apply the All Writs Act "flexibly in

Id. at 173; accord United States
("[C]ourts have
(citation omitted) .
10
In New York Telephone Co., the Supreme Court held that courts
11
have authority under the All Writs Act to issue supplemental orders
12
to third parties to facilitate the execution of search warrants.
13
Court held that "[t]he power conferred by the Act extends, under
14
appropriate circumstances, to persons who, though not parties to the
15
original action or engaged in wrongdoing, are in a position to
16
frustrate the implementation of a court order or the proper
17
administration of justice, ... and encompasses even those who have not
18
taken any affirmative action to hinder justice."
19
particular, the Court upheld an order directing a phone company to
20
assist in executing a pen register search warrant issued under Rule
21
41.
22
for an Order Authorizjng an In-Progress Trace of Wire Commc'ns over
23
Tel. Facilities (Mountain Bell), 616 F.2d 1122, 1132-33 (9th Cir.
24
1980)
25
trace telephone calls, on grounds that "the obligations imposed
26
were reasonable ones."
27
172)).
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to tangible items but is sufficiently flexible to include within its
Id. at 174.
The
In
See id. at 171-76; see also In reApplication of United States
(affirming district court's order compelling Mountain Bell to
(citing New York Telephone Co., 434 U.S. at
New York Telephone Co. also held that "Rule 41 is not limited
scope electronic intrusions authorized upon a finding of probable
cause."
search warrant pursuant to Rule 41 to predicate an All Writs Act
order commanding a utility to implement a pen register and trap and
trace device
authorized pen registers by court order.
Co. and Mountain Bell, the Court had authority pursuant to the All
Writs Act to issue the Order.
434 U.S. at 169.
The Court relied upon the authority of a
before Congress had passed a law that specifically

Under New York Telephone
Further, based on the authority given under the All Writs Act,
10
courts have issued orders, similar to the one the Court issued here,
11
that require a manufacturer to attempt to assist in accessing a
12
cellphone's image files so that a warrant may be executed as
13
originally contemplated.
14
Inc. to Assist in the Execution of a Search Warrant Issued by This
15
Court by Unlocking a Cellphone (In re XXX), 2014 WL 5510865, at *2
16
(S.D.N.Y. Oct. 31, 2014); see also United States v. Navarro, No. 13-
17
CR-5525, ECF No. 39 (W.D. Wa. Nov. 13, 2013).
18
issued All Writs Act orders in support of warrants in a wide variety
19
of contexts, including ordering a phone company to assist with a trap
20
and trace device (Mountain Bell, 616 F.2d at 1129); ordering a credit
21
card company to produce customer records (United States v. Hall, 583
22
F. Supp. 717, 722
23
access to security camera videotapes (In re Application of United
24
States for an Order Directing X to Provide Access to Videotapes
25
(Access to Videotapes), 2003 WL 22053105, at *3
26
2003) (unpublished)); and ordering a phone company to assist with
27
consensual monitoring of a customer's calls (In reApplication of the
28
United States for an Order Directing a Provider of Communication
See,
e.g.,
In
re Order Requiring [XXX],
Courts have also
(E.D. Va. 1984)); ordering a landlord to provide
(D. Md. Aug. 22,
Services to Provide Technical Assistance to the DEA, 2015 WL 5233551,
at *4-5 (D.P.R. Aug. 27, 2015)).
multiple other unpublished orders in this district and across the
country compelling Apple to assist in the execution of a search
warrant by accessing the data on devices running earlier versions of
iOS, orders with which Apple complied. 5
Apple has long recognized this application, and has complied with
search warrants compelling Apple to extract data from older ios
devices locked with a passcode.
10
11
The government is also aware of
In fact, as noted above,
Until last year, Apple did not
dispute any such order.

In New York Telephone Co., the Supreme Court considered three
12
factors in concluding that the issuance of the All Writs Act order to
13
the phone company was appropriate.
14
company was not "so far removed from the underlying controversy that
15
its assistance could not be permissibly compelled."
16
Second, it concluded that the order did not place an undue burden on
17
the phone company.
18
assistance of the company was necessary to achieve the purpose of the
19
warrant.
20
the order issued in this case.
21
22
23
24
25
26
27
28
See id.
2.
First, it found that the phone
See id. at 175.
Id. at 174.
Third, it determined that the
As set forth below, each of these factors supports
Apple is not "far removed" from this matter
First, Apple is not "so far removed from the underlying

controversy that its assistance could not be permissibly compelled."
In litigation pending before a Magistrate Judge in the Eastern
District of New York, that court sua sponte raised the issue of
whether it had authority under the All Writs Act to issue a similar
order. That out-of-district litigation remains pending without any
issued orders, nor would any such order be binding on this Court.
In
any event, that litigation represents a change in Apple's willingness
to access iPhones operating prior iOS versions, not a change in
Apple's technical ability.
5
10
Apple designed, manufactured and sold the SUBJECT DEVICE, and wrote
and owns the software that runs the phone
preventing the search for evidence authorized by the warrant.
Indeed, Apple has positioned itself to be essential to gaining access
to the SUBJECT DEVICE or any other Apple device, and has marketed its
products on this basis.
www.apple.com/business/docs/iOS_Security_Guide.pdf.
and restricts access to the code for the auto-erase function
function that makes the data on the phone permanently inaccessible
See,
which software is
e.g.,Apple's
Security Guide,
Apple designed
the
10
after multiple failed passcode attempts.
11
prevents the government from performing the search for evidence
12
authorized by the warrant without Apple's assistance.
13
software Apple is uniquely able to modify also controls the delays
14
Apple implemented between failed passcode attempts
15
process take too long to enable the access ordered by the Court.
16
Especially but not only because iPhones will only run software
17
cryptographically signed by Apple, and because Apple restricts access
18
to the source code of the software that creates these obstacles, no
19
other party has the ability to assist the government in preventing
20
these features from obstructing the search ordered by the Court
21
pursuant to the warrant.
22
customer and that customer has created a passcode does not mean that
23
the close software connection ceases to exist; Apple has designed the
24
phone and software updates so that Apple's continued involvement and
25
connection is required.
26
This feature effectively
The same
which makes the
Just because Apple has sold the phone to a
Apple is also not made "far removed" by the fact that it is a
27
non-government third party.
While New York Telephone Co. and
28
Mountain Bell involved public utilities, limiting All Writs Act

11
orders to public utilities is inconsistent with the broad scope of
judicial authority under the All Writs Act.
emphasized that "the Company's facilities were being employed to
facilitate a criminal enterprise on a continuing basis[,]" and the
company's noncompliance "threatened obstruction of an investigation
which would determine whether the Company's facilities were being
lawfully used."
Circuit emphasized that its decision "should not be read to authorize
the wholesale imposition upon private, third parties of duties
434 U.S. at 174.
New York Telephone Co.
In Mountain Bell, the Ninth
10
pursuant to search warrants," 616 F.2d at 1132, but Apple is not a
11
random entity summoned off the street to offer assistance, nor is it
12
the target of the investigation.
13
and that design interferes with the execution of search warrants,
14
where it manufactured and sold a phone used by an ISIL-inspired
15
terrorist, where it owns and licensed the software used to further
16
the criminal enterprise, where it retains exclusive control over the
17
source code necessary to modify and install the software, and where
18
that very software now must be used to enable the search ordered by
19
the warrant, compulsion of Apple is permissible under New York
20
Telephone Co.
21
Where Apple designed its software
Moreover, other courts have directed All Writs Act orders based
22
on warrants to entities that are not public utilities.
For example,
23
neither the credit card company in Hall nor the landlord in Access to
24
Videotapes was a public utility.
25
Access to Videotapes, 2003 WL 22053105, at *3.
26
relationship to the iPhone and its software, both legally and
27
technically- which are the produce of Apple's own design- makes
See Hall, 583 F. Supp. at 722;
28
12
Apple's close
compelling assistance from Apple a permissible and indispensable
means of executing the warrant.
3.
The Order does not place an unreasonable burden on

Apple
The Order has also not placed any unreasonable burden on Apple.
Where, as here, compliance with the order would not require
inordinate effort, no unreasonable burden can be found.
Telephone Co., 434 U.S. at 175 (holding that All writs Act order was
not burdensome because it required minimal effort by the company and
See New York
10
provided for reimbursement for the company's efforts)
11
616 F.2d at 1132 (rejecting telephone company's argument that
12
unreasonable burden would be imposed because of a drain on resources
13
and possibility of system malfunctions because the "Order was
14
extremely narrow in scope, restricting the operation to [electronic
15
switching system] facilities, excluding the use of manual tracing,
16
prohibiting any tracing technique which required active monitoring by
17
company personnel, and requiring that operations be conducted 'with a
18
minimum of interference to the telephone service'").
19
Mountain Bell,
While the Order in this case requires Apple to provide or employ
20
modified software, modifying an operating system
21
essentially writing software code in discrete and limited manner
22
not an unreasonable burden for a company that writes software code as
23
part of its regular business.
24
code that may not now exist in the exact form required does not an
25
undue burden make.
which is
is
The simple fact of having to create
In fact, providers of electronic communications
26
27
28
Additionally, the Order provides that Apple may request

reasonable reimbursement for expenses incurred in complying with the
Order.
13
services and remote computing services are sometimes required to
write some amount of code in order to gather information in response
to subpoenas or other process.
All Writs Act has been compelled to provide something that did not
previously exist
pursuant to a search warrant.
F.Supp.2d 1232, 1237 (D. Co. 2012), a defendant's computer- whose
contents were encrypted
pursuant to the All Writs Act to assist the government in producing a
Additionally, assistance under the
the decryption of the contents of devices seized

In United States v. Fricosu, 841
was seized, and the defendant was ordered
10
copy of the unencrypted contents of the computer.
11
assistance does not even require Apple to assist in producing the
12
unencrypted contents; the assistance is rather to facilitate the
13
FBI's attempts to test passcodes.
14
Here, the type of
As noted above, Apple designs and implements all of the features
15
discussed, writes and cryptographically signs the iOS, routinely
16
patches security or functionality issues in its operating system, and
17
releases new versions of its operating system to address issues.
18
comparison, writing a program that turns off non-encryption features
19
that Apple was responsible for writing to begin with would not be
20
unduly burdensome.
21
have the technical ability to comply with the Order, or that the
22
Order asks Apple to undertake an unreasonably challenging software
23
development task.
By
At no point has Apple ever said that it does not
On this point, Apple's silence speaks volumes.
24
Moreover, contrary to Apple's recent public statement that the
25
assistance ordered by the Court "could be used over and over again,
26
on any number of devices" and that "[t]he government is asking Apple
27
to hack our own users," the Order is tailored for and limited to this
28
particular phone.
And the Order will facilitate only the FBI's

14
efforts to search the phone; it does not require Apple to conduct the
search or access any content on the phone.
the Order a threat to other users of Apple products.
maintain custody of the software, destroy it after its purpose under
the Order has been served, refuse to disseminate it outside of Apple,
and make clear to the world that it does not apply to other devices
or users without lawful court orders.
Order presents no danger for any other phone and is not "the
equivalent of a master key, capable of opening hundreds of millions
10
11
Nor is compliance with

Apple may
As such, compliance with the
of locks."
To the extent that Apple claims that the Order is unreasonably
12
burdensome because it undermines Apple's marketing strategies or
13
because it fears criticism for providing lawful access to the
14
government, these concerns do not establish an undue burden.
15
principle that "private citizens have a duty to provide assistance to
16
law enforcement officials when it is required is by no means foreign
17
to our traditions."
18
is not above the law in that regard, and it is perfectly capable of
19
advising consumers that compliance with a discrete and limited court
20
order founded on probable cause is an obligation of a responsible
21
member of the community.
22
discussed above, the Order requires Apple to assist only in
23
facilitating proper, legal access based on a finding of probable
24
cause.
25
encryption infrastructure or unlawfully violate the privacy of its
26
customers.
27
the government is seeking to use capabilities that Apple has
28
purposefully retained in a situation where the former user of the
New York Telephone 434 U.S. at 176 n.24.
The
Apple
It does not mean the end of privacy.
As
Further, the government is not seeking to "break" Apple's
Instead, through proper legal process through the Court,
15
phone is dead and no longer has any expectation of privacy in the
phone, and the owner of the phone consents both to the search of the
phone and to Apple's assistance thereto.
More generally, the burden associated with compliance with legal
process is measured based on the direct costs of compliance, not on
other more general considerations about reputations or the
ramifications of compliance.
For example, an All Writs Act order may be used to require the
production of a handwriting exemplar, see United States v. Li, 55
See In re XXX, 2014 WL 5510865, at *2.
10
F. 3d 325, 329 (7th Cir. 1995), even though the subject may face
11
criminal sanctions as a result of his compliance.
12
speculative policy concerns regarding possible consequences from
13
compliance with the Order in this matter merit little weight,
14
particularly when complying with a court order based on a warrant
15
serves the ends of justice and protects public safety in furthering
16
the investigative aims of a terrorism investigation.
17
18
19
4.
Apple's
Apple's assistance is necessary to effectuate the

warrant
Apple's assistance is also necessary to effectuate the warrant.
20
In New York Telephone Co., the Court held that the order met that
21
standard because "[t]he provision of a leased line by the Company was
22
essential to the fulfillment of the purpose
23
of those connected with the gambling operation -
24
register order had been issued."
25
here also meets this standard, as it is essential to ensuring that
26
the government is able to execute the warrant.
27
28
to learn the identities

for which the pen
434 U.S. at 175.
The Order issued
In this case, the ability to perform the search ordered by the

warrant on the SUBJECT DEVICE is of critical importance to an ongoing
16
terrorism investigation.
The user of the phone, Farook, is a mass
murderer who caused the death of a large number of his coworkers and
the shooting of many others, and who built bombs and hoarded weapons
for this purpose.
backups for the SUBJECT DEVICE, and executed a warrant to obtain all
saved iCloud data associated with the SUBJECT DEVICE.
the iCloud account indicates that Farook was in communication with
victims who were later killed during the shootings perpetrated by
Farook on December 2, 2015, and toll records show that Farook
The FBI has been able to obtain several iCloud
Evidence in
10
communicated with Malik using the SUBJECT DEVICE.
Importantly,
11
however, the most recent backup of the iCloud data obtained by the
12
government was dated October 19, 2015, approximately one and a half
13
months before the shooting.
14
communications and data around the time of the shooting that may
15
reside solely on the SUBJECT DEVICE and can only be obtained if the
16
government is able to search the phone as directed by the warrant.
17
Moreover, as discussed above, Apple's assistance is necessary
18
because without the access to Apple's software code and ability to
19
cryptographically sign code for the SUBJECT DEVICE that only Apple
20
has, the FBI cannot attempt to determine the passcode without fear of
21
permanent loss of access to the data or excessive time delay.
22
Indeed, after reviewing a number of other suggestions to obtain the
23
data from the SUBJECT DEVICE with Apple, technicians from both Apple
24
and the FBI agreed that they were unable to identify any other
25
methods - besides that which is now ordered by this Court - that are
26
feasible for gaining access to the currently inaccessible data on the
As such, there may be relevant, critical
27
28
17
SUBJECT DEVICE. 7
assistance is necessary, and that the Order was therefore properly
issued.
5.
4
5
There can thus be no question that Apple's
Apple's Potential Marketing Concerns Provide

Insufficient Grounds to Disregard a Duly Issued Court
Order Following a Warrant Based on a Finding of
Probable Cause
To the extent that Apple objects on the grounds that it would
undermine its marketing strategy to comply with this Court's Order,
or that it has an overall objection to anything that enables lawful
10
access by the government to encrypted information, the government
11
believes these objections are irrelevant and not legally cognizable
12
before this Court.
13
First, in this case, the government seeks to search the SUBJECT
14
DEVICE pursuant to a validly-issued search warrant, and a validly-
15
issued All Writs Act Order.
16
concern that "information needs to be protected from hackers and
The government shares Apple's stated
17
18
19
20
21
22
23
24
25
26
27
28
The four suggestions that Apple and the FBI discussed (and
their deficiencies) were: (1) to obtain cell phone toll records for
the SUBJECT DEVICE (which, while the government has of course done
so, is insufficient because there is far more information on the
SUBJECT DEVICE than simply toll records); (2) to determine if any
computers were paired with the SUBJECT DEVICE to obtain data (which
the government has determined that none were); (3) to attempt an
auto-backup of the SUBJECT DEVICE with the related iCloud account
(which would not work in this case because neither the owner nor the
government knew the password to the iCloud account, and the owner, in
an attempt to gain access to some information in the hours after the
attack, was able to reset the password remotely, but that had the
effect of eliminating the possibility of an auto-backup) ; and (4)
obtaining previous back-ups of the SUBJECT DEVICE (which the
government has done, but is insufficient because these backups end on
October 19, 2015, nearly one-and-a-half months prior to the IRC
shooting incident, and also back-ups do not appear to have the same
amount of information as is on the phone itself). After subsequent
conversations, though, Apple conceded that none of these suggestions
would work to execute the search warrant or to sufficiently obtain
the information sought.
18
criminals who want to access it, steal it, and use it without our
knowledge or permission."
not compromise that interest.
the owner and user of this particular device against unauthorized or
unlawful access
accessing it.
government "intercept [ing]
health records or financial data, track[ing]
even access [their] phone's microphone or camera without [their]
See Exhibit 1.
The Order at issue does
This is not a situation of protecting
here, the owner consented to the government

Nor is it about protecting Apple's customers from the
[their] messages, access [ing]
[their]
[their] location, or
10
knowledge" or from "hackers and criminals who want to access
11
[personal information], steal it, and use it without our knowledge or
12
permission."
13
based on a finding of probable cause, approved by this Court,
14
permitting the government to search one telephone of an individual
15
suspected of being involved in a terrorist attack that killed 14
16
Americans and wounded 22 others on our own soil, the other directing
17
Apple to provide limited assistance it is uniquely qualified to
18
provide to effectuate that order.
19
What is at stake are two judicially issued orders: one
Second, the assistance ordered is not a "back door" or a "hack"
20
to all of Apple's encryption software.
That is an unwarranted and
21
inaccurate characterization.
22
application for the All Writs Act Order, the government asks that
23
Apple assist in the execution of a search warrant using the
24
capabilities that Apple has retained along within its encryption
25
software, such that the government can attempt to determine the
26
passcode without the additional, non-encryption features that Apple
27
has coded into its operating system, for the SUBJECT DEVICE only.
28
sum, the government seeks the ability to make multiple attempts at
As was made plain in the government's
19
In
determining the passcode without risk that the data subject to search
under the warrant would be rendered permanently inaccessible after 10
wrong attempts.
what a user has the ability to do if the auto-erase function is
turned off.
or a provision of dangerous malware than any update Apple or other
providers send to a phone.
software requested would not reside permanently on the SUBJECT
DEVICE, and Apple can retain control over it entirely.
This aspect of the Order is no more or less than
Moreover, the software required is no more of a "hack"
Indeed, it is less so because the
The Order
10
does nothing regarding the encryption aspect of the operating
11
software, but instead implicates only the non-encryption additional
12
features that Apple has programmed.
13
Moreover, to the extent that Apple has concerns about turning
14
over software to the government so that the government can run the
15
passcode check program, the Order permits Apple to take possession of
16
the SUBJECT DEVICE to load the programs in its own secure location,
17
similar to what Apple has done for years for earlier operating
18
systems, and permit the government to make its passcode attempts via
19
remote access.
20
existing operating systems and software, no one outside Apple would
21
have access to the software required by the Order unless Apple itself
22
chose to share it.
23
required by the Order would go into the "wrong hands" and lead to
24
criminals' and bad actors'
25
someone's physical possession."
26
In this fashion,
just as with Apple's own already-
This eliminates any danger that the software
"potential to unlock any iPhone in
Third, marketing or general policy concerns are not legally
27
cognizable objections to the Order.
28
of whether a court order presents an unreasonable burden is focused

20
As discussed above, the analysis
on the direct costs of compliance, not whether the party strongly
disagrees with the concept of complying.
entertain an argument that fulfilling basic civic responsibilities of
any American citizen or company - complying with a lawful court order
- could be obviated because that company prefers to market itself as
providing privacy protections that make it infeasible to comply with
court-issued warrants.
6.
This Court should not
Public Policy Favors Enforcing of the Order
Strong public policy interests favor enforcing the All Writs Act
10
Order in this matter.
11
emphasized "the clear indication by Congress that the pen register is
12
a permissible law enforcement tool."
13
matter involves the most fundamental investigative tool of all, the
14
search warrant.
15
and explicitly endorsed by Congress.
16
Warrants shall issue, but upon probable cause"); 18 U.S.C.
17
("a warrant may be issued to search for and seize any property that
18
constitutes evidence of a criminal offense").
19
California, 134 S. Ct. 2473, 2495 (2014), the Supreme Court set the
20
standard for what law enforcement must do to search a cell phone
21
seized incident to arrest:
22
has obtained a warrant to search the phone of a mass murderer, but
23
unless this Court enforces the Order requiring Apple's assistance,
24
the warrant will be meaningless.
25
26
27
28
B.
In New York Telephone Co., the Supreme Court
434 U.S. at 176.
Here, this
Its use is enshrined in the text of the Constitution

See U.S. Const. amend. IV ("no
"get a warrant."
3103a(a)
Recently, in Riley v.
Here, the government
Congress has Not Limited this Court's Authority to Issue an

All Writs Act Order to Apple
Based on the government's discussions with Apple, Apple's public

statement, and the litigation pending in the Eastern District of New
21
York, it appears Apple is arguing that it is justified in refusing to
comply with the Order because the All Writs Act has been limited by
Congress.
specifically addresses the issue of Apple's assistance, and the
absence of such a specific statute cannot be read as a decision to
limit existing authority.
execution of this court's jurisdiction in this matter.

1.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
This argument fails because there is no statute that
Thus, the Order was an appropriate
No statute addresses data extraction from a passcodelocked cell phone
The Supreme Court has made clear that "[t]he All Writs Act is a
residual source of authority to issue writs that are not otherwise
covered by statute[,]" such that courts may not rely on the All Writs
Act "[w]here a statute specifically addresses the particular issue at
hand[.]"
Pennsylvania Bureau of Correction, 474 U.S. at 43.
In this
case, no other statute addresses the procedures for requiring Apple

to extract data from a passcode-locked iPhone, so Pennsylvania Bureau
of Correction provides no basis for denying the government's
application for an All Writs Act Order in this case.
In particular, neither Federal Rule of Criminal Procedure 41 nor
the Communications Assistance for Law Enforcement Act ("CALEA"), 47
U.S.C.
1002,
"specifically addresses" - or even vaguely addresses
the duty of Apple to assist in extracting data from a passcode-locked

cell phone in order to permit the government to execute a validly
issued search warrant.
CALEA requires telecommunications carriers to
retain the capability to comply with court orders for real-time

interceptions and call-identifying information (data "in motion")
For example, for the contents of communications, CALEA

requires telecommunications carriers to be able "to intercept" wire
(footnote cont'd on next page)
22
8
Id.
cell phone (data "at rest").
telecommunications carrier, and the Order concerns access to stored
data rather than real-time interceptions and call-identifying
information.
present dispute and does not limit this Court's authority under the
All Writs Act to require Apple to assist the government in executing
a search warrant.
By contrast, this case involves evidence already stored on a

Here, Apple is not acting as a
Put simply, CALEA is entirely inapplicable to the
New York Telephone Co. further illustrates that it is
10
appropriate for a
11
specifically addresses the particular issue at hand.
12
decided New York Telephone Co. in 1977, Congress had enacted Title
13
III for intercepting the contents of communications, but it had not
14
yet enacted the closely-related pen register statute for acquiring
15
non-content information.
16
of 1986
17
Despite the existence of a statute regulating government access to
18
information closely related to pen registers, but not specifically
court
to rely on the All Writs Act unless a statute

When the Court
See Electronic Communications Privacy Act
301, 100 Stat. 1848 (enacting pen register statute).
19
20
21
22
23
24
25
26
27
28
and electronic communications carried by the carrier. 47 U.S.C.

1002 (a) (1) .
CALEA incorporates the definition of "intercept" from
the Wiretap Act, see 47 U.S.C. 1001(1) & 18 u.s.c. 2510(4), and
that definition encompasses only information acquired during
transmission, not while it is in storage.
Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868, 877-878 (9th Cir. 2002).
Furthermore, nothing in CALEA prevents a court from ordering a
telecommunications carrier to decrypt communications that the carrier
is capable of decrypting. See 47 U.S.C. 1002 (b) (3). When Congress
enacted CALEA, it understood that existing provider-assistance
provisions required a provider to decrypt communications when it was
able to do so. Both the House and Senate reports for CALEA stated
that "telecommunications carriers have no responsibility to decrypt
encrypted communications that are the subject of court-ordered
wiretaps, unless the carrier provided the encryption and can decrypt
it." H.R. Rep. No. 103-827(I), at 24 (1994); S. Rep. No. 103-402, at
24 (1994).
9
23
addressing pen registers, the Supreme Court held that an All Writs
Act order could be issued in support of a warrant for a pen register.
Under this reasoning, CALEA is no barrier to the Order in this case.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Congressional inaction does not deprive courts of

their authority under the All Writs Act
2.
The current lack of congressional action regarding encryptionrelated issues does not deprive this Court of its authority to issue
the Order in this case.
Under Pennsylvania Bureau of Correction,
courts may not rely on the All Writs Act where "a statute
specifically addresses" an issue.
But the opposite is not true.
Courts may not categorically refuse to rely on the All Writs Act
Apple would seemingly want the Court to do
declined to legislate.
as
where Congress has
Court authority to issue All Writs Act orders
in support of warrants has been clearly established since the Supreme

Court decided New York Telephone Co. in 1977.
Congress may choose to
expand or limit this authority, but it must do so through enactment

of legislation.
The Supreme Court and the Ninth Circuit have repeatedly
cautioned that "Congressional inaction lacks persuasive significance
because several equally tenable inferences may be drawn from such
inaction[.]"
General Construction Company v. Castro, 401 F.3d 963,
970-71 (9th Cir. 2005)
(quoting Central Bank of Denver v. First
Interstate Bank of Denver, 511 U.S. 164, 187 (1994))
see also United
States v. Craft, 535 U.S. 274, 287 (2002).

Here, there are many possible explanations for congressional
inaction on encryption, including that Congress is satisfied with
existing authorities, or that Congress has not yet reached agreement
on whether or how much to expand existing authorities.
24
These
possibilities provide no basis for restricting legal authorities that
existed before the beginning of the debate.
lose an authority to issue orders under the All Writs Act merely
because Congress does not subsequently enact legislation endorsing or
expanding that authority, this Court retains authority to issue an
All Writs Act Order ccnsistent with New York Telephone Co.
IV.
10
Because courts do not
CONCLUSION
This Court issued a valid Order pursuant to the All Writs Act
requiring Apple to assist the United States in enabling the search
10
for evidence pursuant to a lawful search warrant.
Apple has publicly
11
stated that it will oppose this Order, and has not agreed to comply.
12
For the foregoing reasons, the government respectfully requests that
13
this Court issue an Order compelling Apple to comply.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
Granting legal force to statements or proposals by individual

members of Congress during the course of congressional debate risks
absurd results.
Congress routinely debates and fails to act on
important issues, but the mere debate does not restrict existing
legal authority. Under the Constitution, Congress speaks with legal
force only when it speaks as one body, through bicameralism and
presentment- i.e. when it passes a bill.
25
EXHIBIT 1
Customer
Letter- Apple
Page
I of3
Case 5:16-cm-00010-SP
Document 1 Filed 02/19/16 Page 32 of 35 Page ID
#:32
February 16, 2016
A Message to Our Customers

The United States government has demanded that Apple take an
unprecedented step which threatens the security of our customers. We
oppose this order, which has implications far beyond the legal case at hand.
This moment calls for public discussion, and we want our customers and
people around the country to understand what is at stake.
The Need for Encryption

Smartphones, led by iPhone, have become an essential part of our lives. People use them to store an
incredible amount of personal information, from our private conversations to our photos, our music,
our notes, our calendars and contacts, our financial information and health data, even where we have
been and where we are going.
All that information needs to be protected from hackers and criminals who want to access it, steal it,
and use it without our knowledge or permission. Customers expect Apple and other technology
companies to do everything in our power to protect their personal information, and at Apple we are
deeply committed to safeguarding their data.
Compromising the security of our personal information can ultimately put our personal safety at risk.
That is why encryption has become so important to all of us.
For many years, we have used encryption to protect our customers' personal data because we believe
it's the only way to keep their information safe. We have even put that data out of our own reach,
because we believe the contents of your iPhone are none of our business.
The San Bernardino Case

We were shocked and outraged by the deadly act of terrorism in San Bernardino last December. We
mourn the loss of life and want justice for all those whose lives were affected. The FBI asked us for
help in the days following the attack, and we have worked hard to support the government's efforts to
solve this horrible crime. We have no sympathy for terrorists.
When the FBI has requested data that's in our possession, we have provided it. Apple complies with
valid subpoenas and search warrants, as we have in the San Bernardino case. We have also made
Apple engineers available to advise the FBI, and we've offered our best ideas on a number of
investigative options at their disposal.
We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to
this point, we have done everything that is both within our power and within the law to help them. But
now the U.S. government has asked us for something we simply do not have, and something we
consider too dangerous to create. They have asked us to build a backdoor to the iPhone.
http://www.apple.com/customer-letter/
2/17/2016
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Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing
several important security features, and install it on an iPhone recovered during the investigation. In
the wrong hands, this software- which does not exist today -would have the potential to
unlock any iPhone in someone's physical possession.
The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS
that bypasses security in this way would undeniably create a backdoor. And while the government
may argue that its use would be limited to this case, there is no way to guarantee such control.
The Threat to Data Security

Some would argue that building a backdoor for just one iPhone is a simple, clean-cut solution. But it
ignores both the basics of digital security and the significance of what the government is demanding in
this case.
In today's digital world, the "key" to an encrypted system is a piece of information that unlocks the
data, and it is only as secure as the protections around it. Once the information is known, or a way to
bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.
The government suggests this tool could only be used once, on one phone. But that's simply not true.
Once created, the technique could be used over and over again, on any number of devices. In the
physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of
locks- from restaurants and banks to stores and homes. No reasonable person would find that
acceptable.
The government is asking Apple to hack our own users and undermine decades of security
advancements that protect our customers - including tens of millions of American citizens- from
sophisticated hackers and cybercriminals. The same engineers who built strong encryption into the
iPhone to protect our users would, ironically, be ordered to weaken those protections and make our
users less safe.
We can find no precedent for an American company being forced to expose its customers to a greater
risk of attack. For years, cryptologists and national security experts have been warning against
weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on
companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that
are readily available to them.
A Dangerous Precedent
Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented
use of the All Writs Act of 1789 to justify an expansion of its authority.
The government would have us remove security features and add new capabilities to the operating
system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone
by "brute force," trying thousands or millions of combinations with the speed of a modern computer.
The implications of the government's demands are chilling. If the government can use the All Writs Act
to make it easier to unlock your iPhone, it would have the power to reach into anyone's device to
capture their data. The government could extend this breach of privacy and demand that Apple build
surveillance software to intercept your messages, access your health records or fmancial data, track
your location, or even access your phone's microphone or camera without your knowledge.
Opposing this order is not something we take lightly. We feel we must speak up in the face of what we
see as an overreach by the U.S. government.
2/17/2016
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We are challenging the FBI's demands with the deepest respect for American democracy and a love
of our country. We believe it would be in the best interest of everyone to step back and consider the
implications.
While we believe the FBI's intentions are good, it would be wrong for the government to force us to
build a backdoor into our products. And ultimately, we fear that this demand would undermine the very
freedoms and liberty our government is meant to protect.
Tim Cook
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2/17/2016
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CERTIFICATE OF SERVICE
I, REBECCA EVANS, declare:
That I am a citizen of the United States and resident or employed in Riverside
County, California ; that my business address is the Office of United States Attorney , 3403
Tenth Street, Suite 200, Riverside , CA 92501 ; that I am over the age of eighteen years , and
am not a party to the above-entitled action ; That I am employed by the United States
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Attorney for the Central District of California who is a member of the Bar of the United States
District Court for the Central District of California, at whose direction I served a copy:
GOVERNMENT'S MOTION TO COMPEL APPLE INC. TO COMPLY WITH THIS COURT'S

FEBRUARY 16,2016 ORDER COMPELLING ASS ISTANCE IN SEARCH; EXHIBIT
[X] By electronic mail as follows :
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Mr. Theodore B. Olson

Gibson , Dunn & Crutcher LLP
tolson@gibsondunn .com
Mr. Theodore J. Boutrous Jr.

[email protected]
Ms . Nicola T. Hanna
nhanna@gibsondunn .com
Mr. Eric D. Vandevelde

evandevelde@gibsondunn .com
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This Certificate is executed on February 19, 2016 , in Riverside, California .

certify under penalty of perjury that the foregoing is true and correct.

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Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 1 of 35 Page ID #:1

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

Attorneys for Applicant

IN THE MATTER OF THE SEARCH OF

GOVERNMENT'S MOTION TO COMPEL

The United States of America , by and through its counsel of

record, the United States Attorney for the Central District of

California, and Assistant United States Attorneys Tracy L. Wilkison

("Apple" ) to Comply with this Court's February 16, 20 1 6 Order

Compelling Apple To Assist Agents In Its Search.

Chiu, hereby files its Motion to Compel Apple Inc.

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 2 of 35 Page ID #:2

This Motion is based upon the attached memorandum of points and

authoritiesr the attached exhibit

including the application and order compelling Apple to assist the

argument as the Court may permit.

the files and records in this case

Tracy Wilkison signature

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 3 of 35 Page ID #:3

MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. THE COURT SHOULD ISSUE AN ORDER COMPELLING APPLE TO COMPLY

The All Writs Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Apple is not "far removed 11 from this matter . . . . . . . . . 10

The Order does not place an unreasonable burden

Apple's assistance is necessary to effectuate the

Apple's Potential Marketing Concerns Provide

Public Policy Favors Enforcing of the Order . . . . . . . . . 21

Congress has Not Limited this Court's Authority to

No statute addresses data extraction from a

Congressional inaction does not deprive courts of

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 4 of 35 Page ID #:4

Central Bank of Denver v. First Interstate Bank of Denver,

General Construction Company v. Castro,

United States v. Catoggio,

United States v. Craft,

United States v. Fricosu,

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 5 of 35 Page ID #:5

United States v. Hall,

(7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Navarro,

(W.D. Wa. Nov. 13, 2013) . . . . . . . . . . . . 9

United States v. New York Telephone Co.,

Case 5:16-cm-00010-SP Document 1 Filed 02/19/16 Page 6 of 35 Page ID #:6

MEMORANDUM OF POINTS AND AUTHORITIES

Rather than assist the effort to fully investigate a deadly

terrorist attack by obeying this Court's Order of February 16, 2016,

Apple has responded by publicly repudiating that Order.

been found by this Court to be warranted for an important

Apple has attempted to design and market its products to allow

Despite its efforts, Apple nonetheless retains the

technical ability to comply with the Order, and so should be required

shot and killed 14 people and injured 22 others at the Inland

Regional Center in San Bernardino, Farook's employer issued him an

iPhone during the investigation into the massacre.

has reason to believe that Farook used that iPhone to communicate

with some of the very people whom he and Malik murdered.

time of the shooting that, thus far: