The DOJ has filed its response to Apple’s claims that unlocking an iPhone 5 would be unduly burdensome. This ongoing dispute over an All Writs Act order (the act itself dates back to 1789) is also an ongoing dispute over the use of encryption-by-default on Apple phones running iOS 8 or higher.
The argument started with one of the founding members of the “Magistrates’ Revolt” — Judge James Orenstein — who, back in 2005, challenged another All Writs order by the DOJ. A decade ago, Orenstein pointed out that the government’s use of these particular orders circumvented both the judicial system (by granting it powers Congress hadn’t) and the legislative system (which hadn’t created statutes specifically authorizing the actions the order demanded). Nothing has changed a decade later — not even the DOJ’s continued attempts to teach an old law new tricks.
The DOJ’s argument is this: we’ve used these orders before to force Apple to unlock phones. Why should this one be any different? The filing cites three other cases in which the FBI used an All Writs order to compel the unlocking of an iPhone. Pointing to these, the DOJ argues that past successes should be indicative of future results, despite Judge Orenstein’s assertions that the use of these orders grants powers to the FBI that haven’t been given to it by Congress.
The filing also challenges Apple’s assertions about the burdensomeness of the request. The government says Apple makes $100 million per day in profit. How can the unlocking of one phone — no matter how many man hours might go towards testimony and cross-examination — even begin to make a dent in this pile of money?
It then goes on to compare the present case to 1977’s New York Telephone Co. Supreme Court decision, despite Judge Orenstein pointedly unbundling the two in his original order. In the 1977 case, the Supreme Court found that the All Writs Act could be used to compel a telephone company to provide the FBI with leased lines in order to facilitate its pen register order. As Orenstein pointed out in his order requesting input from Apple, that case is unlike this one because while Apple manufactures the phone, it does not own it.
The DOJ, however, argues that while Apple may not own the phone, it owns the software — specifically, the lockscreen part of the operating system. And that’s where the government makes it most unique — and most dangerous — assertion:
Apple wrote and owns the software that runs the phone, and this software is thwarting the execution of the warrant. Apple’s software licensing agreement specifies that iOS 7 software is “licensed, not sold” and that users are merely granted “a limited non-exclusive license to use the iOS Software.” See “Notices from Apple,” Apple iOS Software License Agreement ¶¶ B(1)-(2), attached hereto as Exhibit C. Apple also restricts users’ rights to sell or lease the iOS Software: although users may make a “one-time permanent transfer of all” license rights, they may not otherwise “rent, lease, lend, sell, redistribute, or sublicense the iOS Software.” Ex. C, ¶ B(3). Apple cannot reap the legal benefits of licensing its software in this manner and then later disclaim any ownership or obligation to assist law enforcement when that same software plays a critical role in thwarting execution of a search warrant.
If the judge buys this argument, the government will be free to issue All Writs orders to access nearly any electronic device — bypassing the purchasers and heading straight for manufacturers. As Cory Doctorow points out, this is not the future we want.
Virtually every commercial software vendor licenses its products, rather than selling them. If the DoJ establishes the precedent that a product’s continued ownership interest in a product after it is sold obliges the company to act as agents of the state, this could ripple out to cars and pacemakers, voting machines and tea-kettles, thermostats and CCTVs and door locks and every other device with embedded software.
The Internet of Things is now the Web of Government Informants.
Finally, the government argues that approaching the owner of the phone is an “unworkable option.” The government wants Apple to do what it can’t require the phone’s owner to do: unlock it.
This Court’s October 9 order suggests that the government might attempt to compel Feng to unlock the Target Phone, see Order at 7, but that approach is also unworkable. Through counsel, Feng asserts that he has forgotten the passcode, which, if true, renders him unable to offer assistance.
Even if Feng knew the passcode, attempting to compel him to unlock the Target Phone would not provide an adequate alternative to an order directed to Apple. Compelled decryption raises significant Fifth Amendment issues and creates risk that the fruits of the compelled decryption could be suppressed. See, e.g., In re Grand Jury Subp. Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1349 (11th Cir. 2012) (holding that the Fifth Amendment protects a defendant’s refusal to decrypt electronic storage media). The government should not be required to pursue a path for obtaining evidence that might lead to suppression.
Soon the government may have no choice. As phone encryption heads towards ubiquity, the FBI will have to roll the dice on evidence suppression. The move towards encryption will render these All Writs orders useless. If the DOJ still wants the broad power those orders convey, it will need new legislation written and passed.
The government also disagrees with Apple’s claim that the damage to its reputation — should it appear to be law enforcement’s best friend — is itself a cognizable burden. The court may agree with the government’s reasoning, but Apple’s assertion sends a strong message to the DOJ: tech companies are tired of facilitating the government’s overreach.
Apple has told its customers only they hold the keys to their phones’ contents going forward. If the government wants in, it will have to approach them directly. The government doesn’t want to deal with the Fifth Amendment implications of prying passcodes out of reluctant defendants, but it probably should have thought of that while steadily abusing the Fourth. By skirting one repeatedly, it has put itself in the position of perpetually falling afoul of another.
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