In re Order Requiring Apple, Inc.

• Decision Date: 29 February 2016
• Docket Number: 15–MC–1902 (JO)
• Citation: 149 F.Supp.3d 341
• Parties: In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court.
• Court: U.S. District Court — Eastern District of New York

149 F.Supp.3d 341

In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court.

15–MC–1902 (JO)

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

Signed February 29, 2016

Lauren Howard Elbert, Ameet B. Kabrawala, Saritha Komatireddy, United States Attorney's Office, Brooklyn, NY, for United States of America.

Marc J. Zwillinger, Jeffrey G. Landis, Zwillgen PLLC, Washington, DC, Kenneth M. Dreifach, Zwillgen, New York, NY, for Apple Inc.

MEMORANDUM AND ORDER

JAMES ORENSTEIN, Magistrate Judge:

The government seeks an order requiring Apple, Inc. (“Apple”) to bypass the passcode security on an Apple device. It asserts that such an order will assist in the execution of a search warrant previously issued by this court, and that the All Writs Act, 28 U.S.C. § 1651(a) (the “AWA”), empowers the court to grant such relief. Docket Entry (“DE”) 1 (Application). For the reasons set forth below, I conclude that under the circumstances of this case, the government has failed to establish either that the AWA permits the relief it seeks or that, even if such an order is authorized, the discretionary factors I must consider weigh in favor of granting the motion. More specifically, the established rules for interpreting a statute's text constrain me to reject the government's interpretation that the AWA empowers a court to grant any relief not outright prohibited by law. Under a more appropriate understanding of the AWA's function as a source of residual authority to issue orders that are “agreeable to the usages and principles of law,” 28 U.S.C. § 1651(a), the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to issue an order under the AWA: the closeness of Apple's relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; and the necessity of imposing such a burden on Apple. As explained below, after reviewing the facts in the record and the parties' arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will. I therefore deny the motion.

I. Background

On June 6, 2014, a magistrate judge of this court granted the government's applications for a warrant to search the Queens, New York residence of Jun Feng (“Feng”), whom it suspected of involvement in drug trafficking, as well as for warrants to arrest Feng and other suspected coconspirators. United States v. The premises known and described as 41–21 149th Street, 1st Fl., Queens, NY, 14–MJ–0530 (MDG), DE 2 (search warrant) (sealed); United States v. Shu Yong Yang, et al., 14–CR–0387 (MKB), DE 1 (complaint) & DE 2 (arrest warrants). Feng was arrested on June 11, 2014, and initially ordered detained; he was subsequently released on conditions on July 18, 2014. Yang, DE 25 (minute entry); DE 26 (detention order); DE 50 (minute order reflecting release). On July 9, 2014, a grand jury sitting in this district issued an indictment accusing Feng and four other named defendants, together with unnamed others, of conspiracy to traffic in methamphetamine. See Yang, DE 47 ¶ 2.

In executing the warrant to search Feng's residence, agents of the United States Drug Enforcement Agency (“DEA”) properly seized several mobile devices, including Feng's mobile telephone. See Govt. II at 5.¹ As agents later learned, that telephone was an iPhone 5s that used Apple's iOS 7 for its operating system.² See id. ; Tr. at 7.³

Over the course of the next year, although the prosecution of Feng and his codefendants moved forward (as did, presumably, the government's investigation of the unknown others mentioned in the indictment), the government apparently did nothing at all to discover what evidence, if any, could be gleaned from Feng's iPhone. Instead, it waited until July 6, 2015, to seek a warrant to search that device and the others seized from Feng's residence. See United States v. Cellular Telephone Devices Seized On Or About June 11, 2014 From Premises Located At 41–21 149th Street, First Floor, In Queens, NY, 15–MJ–0610 (VVP), DE 1 (application for warrant to search devices) (the “Device Application”). A magistrate judge of this court granted the latter application and issued a warrant to search the devices that same day. Id. , DE 2 (the “Device Warrant”). Like the earlier warrant to search Feng's residence, this warrant set a two-week time limit on its execution. Id.

At some point during the following two weeks, the government “initiate[d] the execution of the search warrant [for Feng's iPhone] by attempting to search the device, turning it on and placing it in airplane mode. The [DEA] agents ... began that search but were unable to complete [it] because” the device required a password to allow access to certain information. Tr. at 6. The DEA agents then sought the assistance of the Federal Bureau of Investigation (“FBI”), but remained unable to bypass the iPhone's passcode security. Id. at 6–7; see also Govt. II at 5.

At that point—after the expiration of the two-week period during which agents were permitted to execute the Device Warrant—the government sought Apple's technical assistance. See Govt. II at 6; Tr. at 6. There appears to be no dispute that Apple's response, consistent with its past practice in at least 70 instances, was that it could and would unlock Feng's phone for the agents, but only if a court issued a lawful order requiring it to do so. See Govt. II at 6–7; Tr. at 7–8. Also consistent with past practice, Apple provided the agents with the specific technical language it deemed sufficient to make clear its obligation to provide the services that would allow the agents to gain access to the iPhone's passcode-protected data. See Govt. II at 6–7; Tr. at 7–8, 56–57.⁴

On October 8, 2015, the government filed the instant Application, together with the proposed order that Apple had helped it draft. Relying exclusively on the AWA (and cases interpreting it) for authority, the government made several pertinent factual assertions beyond those recounted above:

• “Because the iOS device is locked, law enforcement agents are not able to examine the data stored on the iOS device as commanded by the search warrant.” Govt. I at 1.

• “[I]n other cases, courts have ordered Apple to assist in effectuating search warrants under the authority of the All Writs Act. Additionally, Apple has complied with such orders.” Id. at 2.

• “The requested order would enable agents to comply with this Court's warrant commanding that the iOS device be examined for evidence identified by the warrant.” Id.

• “Examining the iOS device further without Apple's assistance, if it is possible at all, would require significant resources and may harm the iOS device.” Id. at 2–3.

• “[T]he [requested] order is not likely to place any unreasonable burden on Apple.” Id. at 3.

On October 9, 2015, I issued a Memorandum and Order that declined to rule on the Application ex parte, and instead afforded Apple an opportunity to be heard in advance of any decision about the applicability of the AWA in the circumstances of this case. DE 2, In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, 2015 WL 5920207 (E.D.N.Y. Oct. 9, 2015). I simultaneously directed the Clerk to maintain the Application—but not the Memorandum and Order, which revealed no factual details of the matter—under seal, on the mistaken assumption that its public dissemination could adversely affect an ongoing criminal investigation. DE 3. In its subsequent submission, the government stated that it had never intended to submit under seal either the Application or the proposed order (both of which it attached to its publicly filed legal memorandum), and also noted that the 2015 search warrant authorizing the search of Feng's iPhone was already available on the public docket. See Govt. II at 2 n.1 & Ex. A.

Apple submitted its initial opposition to the Application on October 19, 2015; the government replied on October 22, 2015; Apple filed a supplemental response on October 23, 2015;⁵ and I heard oral argument on October 26, 2015. See Apple I; Govt. II; Apple II; DE 18 (minute entry). At oral argument, it became apparent that there were a number of factual and legal issues that the government and Apple should have further opportunity to address, and I therefore set a schedule for them to file post-hearing submissions. DE 18. Apple and the government filed their respective supplemental briefs on October 28, 2015. See Govt. III; Apple III.

The accelerated briefing and argument schedule described above was not a reflection of the simplicity of the issues in dispute. Rather, it accommodated the government's interest in resolving the matter (both before me and on review of my decision by a district judge) in sufficient time to use any evidence it might secure with Apple's assistance at Feng's trial, which was then scheduled to begin on November 16, 2015. See Govt. II at 4. However, just one day after the oral argument in this case, the court scheduled a proceeding to have Feng enter a new plea; two days later, on October 29, 2015, Feng pleaded guilty pursuant to an agreement with the government. See Yang, Scheduling Order dated Oct. 27, 2015; id. , DE 119 (transcript of plea allocution dated Oct. 29, 2015) (“Allocution”) at 12–13 (confirming Feng's agreement with the government). In notifying me of Feng's plea on the day it was entered, the government wrote that it “persists” in the pending Application, “but in view of the guilty plea, no longer requests expedited treatment.” DE 22.

Because the desire to secure potential evidence for Feng's trial was the only basis for seeking Apple's assistance that the government had identified up to that point, see Govt. II at 3 ...