In an ongoing criminal investigation, the Justice Department in the Eastern District of NY, on October 9, 2015, requested an order pursuant to all Writs Act, 28 U.S.C. § 1651, to compel Apple to “disabl[e] the security of an Apple device that the government has lawfully seized pursuant to a warrant.”

This case has brought to the forefront once again the balancing act between the need from the law enforcement to decode encrypted devices (the going dark problem), prevailing privacy issues, and the lack of Congressional authority to compel third party private manufacturers to cooperate with the government or to design devices not necessarily impermeable.

Here in support of their request to the District Court, the government cited and argued the 1977 US Supreme Court (“the New York Telephone”) whereby the telephone company was compelled to install a pen register in their our equipment to cooperate with an ongoing criminal investigation of their facility.

The District Court distinguished the facts and circumstances of that case from present facts in that:

• The order here is seeking information from a device that Apple does not own or have control over whereas in the case cited the government sought information from the company’s own facility.
• Secondly, Apple is a private company and not a regulated public utility as in the New York Telephone, which used pin registers regularly in its own business practices.
• And lastly, there were no alternative means to secure the information in the Telephone Company case – whereas here the owner of the phone can be compelled to allow access, which would be most likely the government’s next step in their criminal investigation.

The District Court also invited Apple to file a response as to technical feasibility of the government’s request as well as the burdensomeness of the ordeal. Both Apple and “ACLU” submitted synergetic responses/briefs.

Specifically that the order forcing a third party private entity to engage, cooperate and essentially decode a device does not stem from the court’s authority to issue a warrant. Warrant would allow seize of material, but if the material or the object requires further processing to produce data – such secondly act, would not be covered under the warrant or the writ power.

Moreover, the courts cannot legislate what congress has expressly chosen not to legislate or pass as law. That is, Communications Assistance for Law Enforcement Act (CALEA), passed in 1994, which required telecommunications carriers to ensure their equipment, facilities, and services are capable of intercepting individuals’ communications in real time, does not confer the authority to compel private entities to decode their devices or built devices that allow back door access in such cases as presented here.

Simply put, “CALEA” exempts companies like Apple from the requirement that they build interception features into their communications services and products.

The Apple’s response argument was simple, and effective. They cannot decode or gain access to an encrypted device even if they wanted to. Specifically, for devices with IOS 8 or higher, once the device is pass-code protected, it cannot be accessed and the data cannot be retrieved without the passcode with or without a court order.

On operating systems below 8, there is technological ability to retrieve limited data without the passcode, but Apple argued that the process would be burdensome and even unreliable.

It is very unlikely that the Court will compel Apple to partake in the government’s criminal investigation by providing technical assistance to unlock the “iphone” in question. But this case, demonstrates that the trend in technology is on the side of protecting privacy rights and civil liberties, protection of your encrypted data from the hackers or even the government investigators.

Refer to our Washington DC Criminal Lawyer page for more information on the subject.