Case 1:15-mc-01902-JO Document 29 Filed 02/29/16 Page 1 of 50 PageID #: 620

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------X

IN RE ORDER REQUIRING APPLE, INC.

MEMORANDUM

TO ASSIST IN THE EXECUTION OF A

AND ORDER

SEARCH WARRANT ISSUED BY THIS

COURT.

15-MC-1902 (JO)

----------------------------------------------------------X

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.

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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

¹ To the extent that the Application also constitutes the government's initial memorandum in support

of its request for relief, see id. at 2, I will alternatively cite it as "Govt. I." I cite other sources of the

parties' arguments as follows. See DE 11 (Apple's initial memorandum in partial opposition) ("Apple

I"); DE 15 (government's reply) ("Govt. II"); DE 16 (Apple's supplemental opposition, addressing

additional issues at my request) ("Apple II"); DE 19 (transcript of hearing dated Oct. 26, 2015) ("Tr.");

DE 20 (Apple's post-hearing supplemental letter dated Oct. 28, 2015) ("Apple III"); DE 21

(government's post-hearing supplemental memorandum dated Oct. 28, 2015) ("Govt. III").

² The DEA agents never returned the warrant with the inventory of seized items as required. See Fed.

R. Crim. P. 41(f)(1)(D). I assume that the warrant was executed during the authorized two-week period

that expired on June 20, 2014. The date of Feng's arrest - which coincided with the arrests of all of his

codefendants - fell within that period, and thus seems likely to have been the date of the search as well.

³ The record does not reveal the precise version of iOS 7 installed on Feng's iPhone, but neither the

government nor Apple has suggested that any differences among the several versions of that operating

system - as opposed, for instance, to the important differences between iOS 7 on one hand and iOS 8

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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

and later versions on the other in terms of the difficulty of bypassing passcode security - has any

bearing on the technical issues pertinent to this matter.

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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.

⁴ The government's assertion that "Apple … provided the government with specific language to

submit to the Court[,]" Govt. II at 2, could be read to suggest that Apple somehow proposed or

approved the government's reliance on the AWA as authority for the request. I note, however, that it

is only the Application itself that cites the AWA; the proposed order submitted with it does not, but

instead contains the technical language specifically describing the assistance the government wants

Apple to provide. See DE 1-1; Tr. at 57. Also, the reference above to "the iPhone's passcode-protected

data" is deliberately circumscribed. It omits information that the agents could, under certain

circumstances, access without entering the correct passcode, such as a log of recent telephone calls

made or received on the device. See DE 15-4 (Govt. II, Ex. D; excerpt from Apple on-line user's

manual) ("Allow Access When Locked: Allow access to some features when your device is locked,

including Notifications View, Siri, and Control Center."). It also omits other types of data that might

be stored on the device (such as information relating to third-party applications that Feng had installed

on the device) that could be encrypted or protected by different passcodes and therefore inaccessible

to someone using the device's passcode without additional assistance that the government does not

seek here. The record does not reveal whether the government's agents, in their attempts to execute

the warrant to date, have tried to access information on Feng's device that is not passcode protected

and, if so, what they found as a result.

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•

"[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

⁵ Apple, in its initial submission, took pains to avoid addressing any issue other than the feasibility and

burdensomeness of the requested relief - explaining that that was all I had asked it to do. In particular,

it did not provide its views on the legal question of whether the AWA empowers the court to grant the

Application, and it apparently sought no opportunity to do so later. See Apple I at 1 & n.2 ("Apple is

not requesting oral argument."). Because I concluded that Apple was in the best position to

knowledgeably litigate the legal issue presented here - and in particular, in a better position to do so

than the American Civil Liberties Union ("ACLU"), which had offered to submit its own brief on

behalf of itself and other amici curiae, see DE 10 - I asked Apple to file a supplemental response

addressing the legal issue and to appear at oral argument, if only to answer my questions; I

simultaneously denied the ACLU's motion to file an amicus brief. See Orders dated Oct. 20, 2015.

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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 ("[t]he

government seeks evidence relevant to a defendant's guilt in a federal criminal case"), I promptly

directed the government to explain why the Application was not moot. Order dated Oct. 30, 2015.

The government responded that same day. It noted that Feng has yet to be sentenced, and that his case

therefore remains open - although it did not attempt to explain how any information on the iPhone

might alter the advisory sentencing guidelines range that would apply based on factors, including the

amount and type of drugs involved in the offense, that the parties agreed the court could take into

account. See DE 25 at 2; Allocution at 14-16. In addition to relying on the continuing potential need for

evidence against Feng, the government also proffered a new theory: it noted that "Feng pleaded guilty

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to a narcotics conspiracy, and the government's investigation into that conspiracy is ongoing. The

underlying search warrant authorizes the government to seize evidence relating to Feng 'and others,'

including 'customers' and 'sources of drugs.'" DE 25 at 1 (quoting Application, Ex. A, Attachment B).⁶

For several months after Feng's plea and the government's letter, this case progressed no

further. On February 12, 2016 - apparently unprompted by any development in this case, but just as

apparently, in hindsight, reacting to developments elsewhere - Apple filed a letter in response to the

government's submission about the procedural viability of the Application in light of Feng's plea.

Apple eschewed comment on whether the government's ongoing hunt for unindicted others, or the

prospect of Feng's sentencing, sufficed to keep the controversy alive. Instead, Apple alluded to

"additional requests similar to the one underlying the case before this Court" and the fact that it has

"been advised that the government intends to continue to invoke the All Writs Act in this and other

districts in an attempt to require Apple to assist in bypassing the security of other Apple devices in the

government's possession." DE 26 (letter dated Feb. 12, 2016) at 1. Based on those similar requests and

the anticipation of further motions under the AWA, Apple asserted that this matter "is not moot

because it is capable of repetition, yet evading review." Id. at 2 (citing United States v. N.Y. Tel. Co., 434

U.S. 159, 190 n.6 (1977)).

I recognized that while Apple's letter identified a sound legal theory, it did not supply a

sufficiently particularized factual basis for applying it in this case. Moreover, it was apparent that those

⁶ The pretrial proceedings in Feng's case had lasted for nearly a year after the defendants' arrest when,

at a status conference on June 3, 2015, Feng made clear his intention to proceed to trial

(notwithstanding the other remaining defendants' announced intentions to enter guilty pleas) and the

court indicated a desire to begin the trial in August. See Yang, Minute Entry dated June 3, 2015. On July

10, 2015, the court in Feng's case acceded to the parties' need to translate and review extensive

recordings in Chinese and set a trial date of November 16, 2015. See Yang, Minute Entry dated July 10,

2015. It was only at that point that the government, on July 6, 2015, sought the warrant it seeks to have

the court enforce here.

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unreported facts might bear on a number of legal issues about which the parties had disagreed at oral

argument. I therefore directed Apple to provide, among other things, specific details of the requests it

had received from the government during the pendency of this action, the position Apple had taken in

response, and the results of those requests. See Order dated Feb. 16, 2016. Although I did not require

a response until March 1, 2016, Apple supplied the requested information the next day. DE 27 (letter

dated Feb. 17, 2016). In that response, Apple identified nine requests filed in federal courts across the

country from October 8, 2015 (the date of the instant Application) through February 9, 2016. Id. at 2.

In each, Apple has been ordered under the authority of the AWA (or has been told that an order has

been requested or entered) to help the government bypass the passcode security of a total of twelve

devices; in each such case in which Apple has actually received a court order, Apple has objected. Id.

None of those cases has yet been finally resolved, and Apple reports that it has not to date provided

the requested assistance in any of them. Id. at 2-3.

In addition to the nine new cases described above, Apple also reported that as recently as

February 16, 2016, shortly after my own order of the same date, the United States District Court for

the Central District of California had entered an ex parte order under the AWA directing Apple

to perform even more burdensome and involved engineering than that sought in the

case currently before this Court - i.e., to create and load Apple-signed software onto

the subject iPhone device to circumvent the security and anti-tampering features of the

device in order to enable the government to hack the passcode to obtain access to the

protected data contained therein.

Id. at 1 (citing DE 27-1 (copy of In the Matter of the Search of an Apple iPhone Seized During the Execution of

a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. ED 15-0451M) (the

"California" action), Order Compelling Apple, Inc. to Assist Agents in Search (C.D. Cal. Feb. 16,

2016)). On February 22, 2016, the government confirmed that Apple's description of the recent

requests could properly be filed on the public docket without jeopardizing any pending criminal

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investigation; in doing so, it noted the existence of yet one more case in which a court has ordered

Apple to help the government bypass the passcode security of a locked device. DE 28. This matter is

therefore one of a dozen pending cases in which the government and Apple disagree as to the court's

authority to command Apple to assist the government in defeating the passcode security of devices

Apple has manufactured.⁷

II.

Discussion

Mootness

As a threshold matter, I agree with the government that its Application is not moot as a result

of Feng's guilty plea. Whether the government will ever actually use any information it may find on

Feng's phone either to litigate the sentencing phase of Feng's prosecution or to identify and prosecute

the coconspirators, customers, and suppliers the government is pursuing, is ultimately of no moment.

The government enjoys the prerogative to conduct lawful investigations into suspected criminal

activity as it sees fit, and in this case it chooses to search for evidence on Feng's iPhone

notwithstanding the fact that Feng's guilt has been established. Having made that choice, it is free to

take the position it does here, and a ruling on the Application will therefore resolve a live dispute about

whether Apple must unwillingly be compelled to provide the assistance the government seeks. The

matter is therefore not moot.⁸

⁷ In addition, the government has identified three other closed cases in which a court issued an order

under the AWA requiring Apple to extract information from a passcode-protected device, all without

objection from Apple. See Govt. II at 9-10.

⁸ I do not rely on Apple's assertion that the case is justiciable on the ground that the dispute here is

capable of repetition yet evading review. This case would obviously not be moot if Feng had continued

to insist on his right to a trial; and there is no reason to suppose that in the dozen pending cases there

are none in which Apple's objection to an order under the AWA requiring its assistance can be litigated

and resolved before being mooted by a defendant's plea. Indeed, it is entirely possible that some of

those cases - such as the California action, in which the only known participants in the crime under

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The All Writs Act

For as long as this nation has had courts established by Congress pursuant to Article III of the

Constitution, those courts have been endowed with broad statutory authority to ensure they could

effectively carry out the duties of an independent judiciary by issuing the orders necessary to do so -

even if Congress had not had the foresight to create all of the procedural mechanisms that might be

required. As initially enacted by the First Congress in 1789, the AWA provided:

That all the before-mentioned courts of the United States, shall have power to issue

writs of scire facias, habeas corpus, and all other writs not specially provided for by statute,

which may be necessary for the exercise of their respective jurisdictions, and agreeable

to the principles and usages of law.

Judiciary Act of 1789, 1 Stat. 73, § 14 (Sept. 24, 1789); see id. §§ 1-5 (establishing the courts mentioned

in Section 14). That language has been amended only twice in the succeeding centuries, and never in

any substantive way. In 1948, when Congress codified federal criminal law in Title 18 of the United

States Code, it rendered the statute's text in a more modern style by removing the reference to two

specific common law writs, it updated the language to reflect the broader array of federal courts then in

existence, it expanded "necessary" to "necessary or appropriate", and it decided (for reasons that I

cannot imagine have any impact on this case) to switch the order of words "principles" and "usages":

The Supreme Court and all courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective jurisdictions agreeable to the usages

and principles of law.

80 Pub. L. 772, 62 Stat. 683, 944 (June 25, 1948). A year later, Congress merely inserted the word "and"

before the word "agreeable". See 81 Pub. L. 72, § 90, 63 Stat. 89, 102 (May 24, 1949). Thus, as currently

formulated, the AWA provides, in pertinent part:

investigation have died, and where, as a result, there are no defendants with pending charges at all -

cannot be concluded without the court first resolving the dispute arising under the AWA.

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The Supreme Court and all courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective jurisdictions and agreeable to the

usages and principles of law.

28 U.S.C. § 1651(a).

The plain text of the statute thus confers on all federal courts the authority to issue orders

where three requirements are satisfied:

issuance of the writ must be "in aid of" the issuing court's jurisdiction;

the type of writ requested must be "necessary or appropriate" to provide such

aid to the issuing court's jurisdiction; and

the issuance of the writ must be "agreeable to the usages and principles of

law."

If an application under the AWA meets all three of those requirements, the court "may" issue

the requested writ in the exercise of its discretion - but it is never required to do so. See, e.g., Application

of U.S. in Matter of Order Authorizing Use of a Pen Register, 538 F.2d 956, 961 (2d Cir. 1976), rev'd on other

grounds, United States v. N.Y. Tel. Co., 434 U.S. 159 (1977); Morrow v. District of Columbia, 417 F.2d 728, 736

(D.C. Cir. 1969); Paramount Film Distributing Corp. v. Civic Center Theatre, Inc., 333 F.2d 358, 360 (10th Cir.

1964); Chemical & Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962). A court deciding whether to

take such discretionary action should consider three additional factors:

the closeness of the relationship between the person or entity to whom the

proposed writ is directed and the matter over which the court has jurisdiction;

the reasonableness of the burden to be imposed on the writ's subject; and

the necessity of the requested writ to aid the court's jurisdiction (which does

replicate the second statutory element, despite the overlapping language).

See N.Y. Tel. Co., 434 U.S. at 174-78.

As set forth below, I conclude that in the circumstances of this case, the government's

application does not fully satisfy the statute's threshold requirements: although the government easily

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satisfies the statute's first two elements, the extraordinary relief it seeks cannot be considered

"agreeable to the usages and principles of law." In arguing to the contrary, the government posits a

reading of the latter phrase so expansive - and in particular, in such tension with the doctrine of

separation of powers - as to cast doubt on the AWA's constitutionality if adopted. Moreover, I further

conclude that even if the statute does apply, all three discretionary factors weigh against issuance of the

requested writ, and that the Application should therefore be denied as a matter of discretion even if it

is available as a matter of law.

Statutory Requirements

Aid of Jurisdiction

Controlling case law conclusively demonstrates that the government seeks relief that is in aid

of this court's jurisdiction for purposes of the AWA. To be sure, Justice Stevens, in a dissenting

opinion in N.Y. Tel. Co. (reflecting the views of himself and Justices Brennan, Marshall, and Stewart),

persuasively explained the important distinction between the judiciary's interest in authorizing a search

and the executive's wholly different agenda in using that authority to gather evidence - and

simultaneously demonstrated that the case law interpreting the AWA had consistently reflected that

distinction. See N.Y. Tel. Co., 434 U.S. at 186-90 (Stevens, J., dissenting); id. at 178 (Stewart, J.,

concurring in part and dissenting in part) (joining Part II of Justice Stevens' dissent).

The N.Y. Tel. Co. majority, however, decisively rejected the dissenters' arguments:

The dissent's attempt to draw a distinction between orders in aid of a court's own

duties and jurisdiction and orders designed to better enable a party to effectuate his

rights and duties … is specious. Courts normally exercise their jurisdiction only in

order to protect the legal rights of parties. In Price v. Johnston, 334 U.S. 266 (1948), for

example, the production of the federal prisoner in court was required in order to

enable him to effectively present his appeal which the court had jurisdiction to hear.

Similarly, in Harris v. Nelson, 394 U.S. 286 (1969), discovery was ordered in connection

with a habeas corpus proceeding for the purpose of enabling a prisoner adequately to

protect his rights. Here, we have held that Fed. Rule Crim. Proc. 41 provided the

District Court with power to authorize the FBI to install pen registers. The order

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issued by the District Court compelling the Company to provide technical assistance

was required to prevent nullification of the court's warrant and the frustration of the

Government's right under the warrant to conduct a pen register surveillance, just as the

orders issued in Price and Harris were necessary to protect the rights of prisoners.

Id. at 175 n.23. Thus, regardless of the persuasiveness of any argument to the contrary, I am

constrained to conclude that, as a general matter, it would normally be in aid of the court's jurisdiction

to order Apple to assist the government in executing a valid warrant to search Feng's device.

Further, the fact that the warrant to be enforced expired long before the government sought to

compel Apple's assistance in executing it does nothing to extinguish the court's jurisdiction. Although

the general rule is that the government must execute a search warrant no more than fourteen days after

its issuance, Fed. R. Crim. P. 41(e)(2)(A)(i), in the context of a warrant to seize electronic storage media

such as Feng's device, that time limit "refers to the seizure or on-site copying of the media … and not

to any later off-site copying or review." Fed. R. Crim. P. 41(e)(2)(B). Accordingly, ordering Apple to

help the government bypass the passcode security on Feng's device would be in aid of this court's

jurisdiction for purposes of the AWA.

Necessary or Proper

I likewise readily conclude that the requested order to Apple is "necessary or appropriate"

within the meaning of the AWA. "Indeed, '[u]nless appropriately confined by Congress, a federal court

may avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such

historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.'" N.Y. Tel.

Co., 434 U.S. at 172-73 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 273 (1942)).⁹

⁹ I explain below, in discussing the statute's "usages and principles" requirement, why I reject the

government's assertion that the AWA empowers a court to take any action not prohibited by act of

Congress. As the passage from N.Y. Tel. Co. quoted above demonstrates, however, the government's

position is not wholly divorced from prior judicial interpretation of the Act. I agree that only a

Congressional prohibition may place a judicial action beyond the bounds of what would otherwise be

"necessary or appropriate in aid of" the court's jurisdiction. But that does not mean that every writ

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Agreeable to the Usages and Principles of Law

The question whether the AWA permits the relief sought here thus reduces to whether it is

"agreeable to the usages and principles of law" to compel Apple - a private party with no alleged

involvement in Feng's criminal activity - to perform work for the government against its will. Federal

case law offers little if any guidance on how to understand that term in the context of this case.¹⁰ I

therefore consider this aspect of the statute in the context of case law that more generally discusses the

AWA's overall function as a "gap filler" - that is, a source of interstitial authority that renders it

unnecessary for Congress to anticipate every circumstance in which a federal court might properly act

to vindicate the rights of parties before it. See, e.g., Harris, 394 U.S. at 300 ("the purpose and function of

the All Writs Act to supply the courts with the instruments needed to perform their duty") (citations

omitted); Michael v. I.N.S., 48 F.3d 657, 669 (2d Cir. 1995) (“[T]he scope of the all writs provision

Congress has not proscribed is necessarily "agreeable to the usages and principle of law." Indeed,

ascribing such parallel meaning to the latter clause would strip it of any independent effect, and

thereby run afoul of an established rule of statutory construction. Duncan v. Walker, 533 U.S. 167, 174

(2001) ("It is our duty 'to give effect, if possible, to every clause and word of a statute.'") (quoting

United States v. Menasche, 348 U.S. 528, 538-39 (1955)); cf., Marx v. Gen. Revenue Corp., 133 S. Ct. 1166,

1177 (2013) ("The canon against surplusage is not an absolute rule …. [it] assists only where a

competing interpretation gives effect to every clause and word of a statute.") (internal quotations

omitted). Thus, the government's attempt to rely on the quoted passage from N.Y. Tel. Co. as a basis

for satisfying the "usages and principles" prong of the AWA, rather than the "necessary or

appropriate" prong to which the Court directly relates it, is entirely misplaced. See Govt. III at 7.

¹⁰ The Supreme Court wrote in 1952 that, "[i]n determining what auxiliary writs are 'agreeable to the

usages and principles of law,' we look first to the common law." United States v. Hayman, 342 U.S. 205,

221 n.35 (1952) (quoting Price, 334 U.S. at 281). But that observation - made in the context of

determining whether a particular type of writ of habeas corpus was available under common law, and

therefore under the AWA - has no bearing on the instant dispute. Similarly, the Tenth Circuit's

citation to Hayman for the same point in the context of determining the availability of a collateral

challenge to a criminal conviction also offers no interpretive assistance here. See Rawlins v. Kansas, 714

F.3d 1189, 1196 (10th Cir. 2013) (citing Hayman, 342 U.S. at 221 n.35). In both cases, the discussion of

the "usages and principles" clause was largely directed to identifying the types of writs that could be so

described. Apple does not object that the type of assistance the government seeks here cannot find a

close enough antecedent in the common law; the issue here - which Hayman and Rawlins had no need

to address - is whether the issuance of such a writ is an appropriate application of the AWA's

gap-filling function.

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confine[s] it to filling the interstices of federal judicial power when these gaps threaten[] to thwart the

otherwise proper exercise of federal courts' jurisdiction.") (quoting Pennsylvania Bureau of Correction v.

U.S. Marshals Serv., 474 U.S. 34, 41 (1985)).

The limits of such gap-filling authority are easily discerned. At one end of the spectrum, the

AWA cannot be interpreted to empower courts to do something that another statute already

authorizes (but that might have threshold requirements that cannot be satisfied in the circumstances of

a particular case). See Pennsylvania Bureau of Correction, 474 U.S. at 43. At the other end, the government

allows that a court cannot rely on the AWA (or, presumably, anything else) to issue an order that is

explicitly or implicitly prohibited under a federal statute. See Govt. III at 7.

The gap between those two poles is large indeed, and the crux of Apple's dispute with the

government about the meaning of the AWA's requirement that a writ be "agreeable to the usages and

principles of law" is whether the statute fills all of that gap, as the government contends, or only some

of it. In particular, unlike the government, Apple contends that a court order that accomplishes

something Congress has considered but declined to adopt - albeit without explicitly or implicitly

prohibiting it - is not agreeable to the usages and principles of law. See Apple II at 4; Apple III at 4. As

explained below, I agree. Before discussing that matter, however, I first briefly consider how this case

would come out if, instead of rejecting the government's understanding of the AWA's gap-filling

function, I adopted it. Even under that reading of the law, I believe Apple has the better argument -

both because it is arguable that CALEA¹¹ explicitly absolves a company like Apple of any

responsibility to provide the assistance the government seeks here and also because even if CALEA

does not have such an explicit prohibition, it is part of a larger legislative scheme that is so

¹¹ The acronym refers to the Communications Assistance for Law Enforcement Act, Pub. L. No.

103-414, 108 Stat. 4279, codified at 47 U.S.C. §§ 1001-1010.

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comprehensive as to imply a prohibition against imposing requirements on private entities such as

Apple that the statute does not affirmatively prescribe.

CALEA

The Statute's Purpose and Text

Congress enacted CALEA in 1994 to address its concern that "new and emerging

telecommunications technologies pose problems for law enforcement[.]" U.S. Telecom Ass'n v. F.C.C.,

227 F.3d 450, 454 (D.C. Cir. 2000) (quoting H.R. rep. No.103-827 ("CALEA House Report"), pt. 1, at

14 (1994)). It designed the statute "to preserve the government's ability, pursuant to court order or

other lawful authorization, to intercept communications involving advanced technologies such as

digital or wireless transmission modes, or features and services such as call forwarding, speed dialing

and conference calling, while protecting the privacy of communications and without impeding the

introduction of new technologies, features, and services[.]” Id. (quoting CALEA House Report at 9).¹²

As part of its effort to ensure that the law would not stem technological progress, the

legislature included several provisions exempting certain kinds of entities from the more general

requirement to assist law enforcement in the execution of court orders authorizing various forms of

electronic surveillance. These "Limitations" on CALEA's scope, 47 U.S.C. § 1002(b), fell into three

categories. First, Congress limited the ability of law enforcement to prescribe or constrain the services

communications companies could offer their customers and the equipment and systems used to

market them:

¹² Although designed primarily to preserve the ability of law enforcement agencies to engage in lawful

electronic surveillance, the statute was not limited to that topic. For example, it also addressed the

responsibilities of private companies to preserve and allow access to records relating to wire and

electronic communications. See, e.g., 47 U.S.C. § 1002(a)(2)-(4) (prescribing responsibilities concerning

"call-identifying information").

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Design of features and systems configurations. This subchapter does not authorize any

law enforcement agency or office

(a) to require any specific design of equipment, facilities, services, features, or system

configurations to be adopted by any provider of a wire or electronic communication

service, any manufacturer of telecommunications equipment, or any provider of

telecommunications support services;

(b) to prohibit the adoption of any equipment, facility, service, or feature by any

provider of a wire or electronic communication service, any manufacturer of

telecommunications equipment, or any provider of telecommunications support

services.

47 U.S.C. § 1002(b)(1).

Second, Congress explicitly exempted certain types of businesses from the statute's obligations

to assist law enforcement:

Information services; private networks and interconnection services and facilities.

The requirements of subsection (a) of this section do not apply to -

(A) information services; or

(B) equipment, facilities, or services that support the transport or switching of

communications for private networks or for the sole purpose of

interconnecting telecommunications carriers.

Id. § 1002(b)(2).

Finally, Congress largely (but not completely) exempted from CALEA's general requirement

of private assistance to law enforcement a requirement that businesses help agents bypass any

encryption that might shield communications from surveillance:

Encryption. A telecommunications carrier shall not be responsible for decrypting, or

ensuring the government’s ability to decrypt, any communication encrypted by a

subscriber or customer, unless the encryption was provided by the carrier and the

carrier possesses the information necessary to decrypt the communication.

Id. § 1002(b)(3).¹³

¹³ This provision precludes the government from requiring carriers to build into the encryption

measures they make available to their subscribers a "back door" that enables law enforcement access

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ii.

Application to Construction of the AWA

Both the government and Apple agree that CALEA does not compel a private company such

as Apple to provide the kind of assistance the government seeks here. See Govt. II at 22; Apple II at 5.

They disagree as to why that is so: the government contends that CALEA simply has nothing to say on

the matter, while Apple argues that the omission reflects a legislative choice. As explained below,

Apple's argument has more merit.

The government suggests that CALEA imposes duties on telecommunications carriers only

with respect to what it calls "data 'in motion'" and then adds that "[b]y contrast, this case involves

evidence already stored on a cell phone (data 'at rest')." Govt. II at 22; see also Govt. III at 9-10.¹⁴ From

there, it argues that the statutory language exempting "information services" from comparable duties is

irrelevant, regardless of whether Apple qualifies as such a service, because the information it seeks to

seize from Feng's iPhone is data "at rest." See Govt. II at 22 ("CALEA is entirely inapplicable to the

present dispute").

The proposition that CALEA makes a distinction between data "at rest" and "in motion" is

largely correct as far as it goes, but ultimately misses the point. Even if Congress did not in any way

to encrypted communications. It does no more than provide that law enforcement is entitled to have

carriers assist in securing access to encrypted information where the carrier in making such encryption

available, has also retained a decryption key for its own purposes that would allow such access.

¹⁴ In seeking to explain CALEA's purported irrelevance to this case, the government observes that the

instant application does not seek "to compel Apple to develop a technical capability that Apple does

not already possess." Govt. III at 9. Such more intrusive relief, however, is precisely what the

government seeks in the California action - relying, as it does here, on the proposition that the

requested order is "agreeable to the usages and principles of law." As discussed below, that fact is

pertinent to a consideration in this case of the reasonableness of the burden the government seeks to

impose on Apple.

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regulate data "at rest" in CALEA,¹⁵ it plainly could, and did, enact such legislation elsewhere. See, e.g.,

18 U.S.C. § 2703(f)(1) (requiring "[a] provider of wire or electronic communication services or a

remote computing service, upon the request of a governmental entity, [to] take all necessary steps to

preserve records and other evidence in its possession pending the issuance of a court order or other

process"). Thus, long before the instant Application was filed, Congress enacted legislation to

prescribe the private sector's duties to assist a wide variety of law enforcement investigations - relating

to data both "in motion" and "at rest." Those laws defined the extent to which all sorts of service

providers had such duties: telecommunications service providers, information service providers, and

the providers of wire and electronic communications. None of those laws imposed any obligation on

Apple to provide the assistance at issue here, and in particular, CALEA expressly stated that the

assistance requirement did not apply to "information services." 47 U.S.C. § 1002(b)(2)(A).¹⁶

The latter point is pertinent because, as Apple persuasively argues, "Apple is substantially

engaged in the provision of 'information services' as that term is defined under CALEA, and thus

could be considered an information services provider." Apple III at 1 (citing 47 U.S.C. § 1001(6)). As

Apple notes:

¹⁵ But see 47 U.S.C.A. § 1002(a)(2)(B) (requiring telecommunications service providers to have the

ability to provide "call-identifying information" to law enforcement even after a call's conclusion -

when, presumably, such information would be "at rest" within the government's meaning).

¹⁶ As a fallback position, the government writes that "even if it were applicable, CALEA addresses a

provider's capability to produce information when it receives a court order, not the government's

authority to obtain information pursuant to a court order in the first place." Govt. II at 22. Here again,

the government fails to take into account the reality that Congress does not always place all related

regulations of a given subject into a single section of the United States Code. While it is true enough

that a service provider's technical capabilities are prescribed in CALEA, Congress has also elsewhere

defined "the government's authority to obtain [the] information [a provider must make accessible]

pursuant to a court order in the first place." See, e.g., 18 U.S.C. §§ 2518, 2522 (prescribing requirements

for the interception of communications and providing for means to thereupon require the pertinent

communications service providers to render the assistance necessary to accomplish such interception).

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Under CALEA "information services" means the "offering of a capability for

generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making

available information via telecommunications," and "includes a service that permits a

customer to retrieve stored information from, or file information for storage in,

information storage facilities; electronic publishing; and electronic messaging

services." [47 U.S.C.] § 1001(6).

Apple is substantially engaged in developing and offering products that provide such

capabilities. For example, Apple’s iTunes service allows customers to purchase, store,

and access music, movies, television shows, games and apps via an Internet-connected

Apple device, such as an iPhone[.] iTunes thus constitutes an "information service"

under CALEA by providing "a capability for … acquiring, storing … [and] retrieving .

. . information via telecommunications." Id. Similarly, iMessage allows Apple

customers (connected over the Internet) to communicate by messages sent and

received via their iPhone[.]

Apple III at 1-2.

CALEA thus prescribes for telecommunications carriers certain obligations with respect to law

enforcement investigations that it does not impose on a category of other entities - described as

"information service providers" - that easily encompasses Apple. Thus, as Apple argues with some

justification, "the bounds of mandatory law enforcement assistance were drawn by CALEA, and

drawn in such a way to exclude the relief the government seeks." Id. at 4.

To be sure, CALEA by itself has limits that render that one statute less than comprehensive.

But considered together with other statutes prescribing the extent to which law enforcement may

secure access to a wide array of data - both "in motion" and "at rest" - as well as the obligations of

some private entities but not others to provide affirmative assistance to such investigations, the statute

is easily seen as part of a comprehensive legislative scheme. The absence from that comprehensive

scheme of any requirement that Apple provide the assistance sought here implies a legislative decision

to prohibit the imposition of such a duty.¹⁷ Thus, even under the government's reading of the AWA,

¹⁷ A similar argument can be made with respect to the various statutes and rules authorizing a court to

authorize the seizure of various kinds of evidence. Here again, Congress manifestly knows how to

explicitly impose an obligation on private parties to provide assistance to law enforcement in the

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I would conclude that while the matter is a close call, the Application seeks an order that is not

"agreeable to the usages and principles of law."

Statutory Construction

If the best reading of CALEA produces a conclusion that it prohibits the relief the government

seeks here, then the Application must be denied even under the government's understanding of what

it means for a judicial order to be "agreeable to the usages and principles of law." But if CALEA,

considered in the context of a larger statutory scheme, does not erect such a barrier to relief on its own

terms, then resolution of the Application turns on whether the gap in laws that the AWA fills is, as the

government argues, the entire space between authorizing statutes and legislative prohibitions or if, as

Apple would have it, it only reaches to such legislative powers as Congress has not considered and

either adopted or rejected. As explained below, I conclude that Apple's position is more consistent

than the government's with the rule of statutory construction that requires giving meaning to all

statutory words and clauses as well as the rules prohibiting interpretations that produce absurd results

or are of suspect constitutionality.

First, as a matter of technical statutory construction, I can find no way to read the statute in a

way that gives the required independent meaning to three distinct terms in the AWA - "usages",

"principles", and "law" - that conforms to the government's view of the statute. See, e.g., Duncan, 533

U.S. at 174 (courts have a "duty to give effect, if possible, to every clause and word of a statute")

(quoting Menasche, 348 U.S. at 538-539); United States v. Nordic Vill. Inc., 503 U.S. 30, 36 (1992) ("a statute

must, if possible, be construed in such fashion that every word has some operative effect"); Am. Civil

execution of such court orders. Thus, Congress has explicitly required private parties to assist in the

execution of warrants authorizing wiretaps and pen registers, see 18 U.S.C. §§ 2518(4), 3123(b)(2), but

it has imposed no corresponding obligation on private parties to assist in the execution of search and

seizure warrants under Federal Rule of Criminal Procedure 41.

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Liberties Union v. Clapper, 804 F.3d 617, 623 (2d Cir. 2015) (courts "must … strive to avoid

interpretations of a statute that would render any phrase or provision superfluous") (citing TRW Inc. v.

Andrews, 534 U.S. 19, 31 (2001)).

"[A]greeable to" means, in essence, "consistent with." See, e.g., Webster's Third New International

Dictionary of the English Language Unabridged at 43 (Merriam-Webster 2002) (defining "agreeable" to

mean, among other things, "in harmony or keeping : CONSISTENT, CONSONANT"). Congress could

easily have written the AWA to mean what the government says it means simply by requiring that a

court's orders under the statute must be "agreeable to the law" - because any action not prohibited by

law is, by definition, agreeable to the law.¹⁸ But the AWA requires an order issued under its aegis to be

agreeable not merely to some part of the entire body of law, but to the law's "usages" and "principles"

- which must mean something else. The most natural reading gives meaning to the whole phrase by

limiting the permissible orders to those that not only fail to violate legislative prohibitions, but that also

are consonant with both the manner in which the laws were developed (that is, the "principles" that

the laws reflect) and the manner in which the laws have been interpreted and implemented (that is, the

"usages" of the various laws). Others may propose plausible alternative interpretations of "agreeable to

the usages and principles of law."¹⁹ But whatever each of its words may mean in isolation, the rules of

¹⁸ Indeed, later Congresses have endorsed just such simple formulations in approving rules that give

the judiciary the flexibility it needs to conduct its business. See Fed. R. Crim. P. 57(b) ("A judge may

regulate practice in any manner consistent with federal law, these rules, and the local rules of the

district."); Fed. R. Civ. P. 83(a)(1) (authorizing promulgation of local rules that "must be consistent

with - but not duplicate - federal statutes and rules adopted under 28 U.S.C. §§ 2072 and 2075"); Fed.

R. Civ. P. 83(b) ("A judge may regulate practice in any manner consistent with federal law, rules

adopted under 28 U.S.C. §§ 2072 and 2075, and the district's local rules.").

¹⁹ To date, however, the government has not come up with any such permissible alternative

construction, let alone a better one. At oral argument, when I invited the government to reconcile its

broad reading of the AWA "with a statute that includes not just agreeable to law but agreeable to

principles and usages of law [sic]," Tr. at 38, it acknowledged my concern but then went on to answer

a different question by discussing the extent to which a particular statute is sufficiently comprehensive

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statutory construction compel me to conclude that their meanings are distinct - and the government's

preferred reading of the AWA does not permit that.

Second, the implications of the government's position are so far-reaching - both in terms of

what it would allow today and what it implies about Congressional intent in 1789 - as to produce

impermissibly absurd results. See, e.g., United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000) ("A

statute should be interpreted in a way that avoids absurd results."); United States v. Wilson, 503 U.S. 329,

334 (1992) ("absurd results are to be avoided").

At the heart of the government's reading is the assuredly correct observation that there are any

number of ways in which Congress may fairly be said to have considered legislation that does not

result in the enactment of legislation, and that as a result the only practical way to discern what is

agreeable to the usages and principles of law from what is not is to draw a bright line around what

Congress has prohibited - either explicitly or implicitly via the omission of authority from a

comprehensive legislative scheme. See Govt. II at 24; Tr. at 15, 37. I agree with the government that

"[c]ongressional inaction lacks persuasive significance because several equally tenable inferences may

be drawn from such inaction." Zino Davidoff v. CVS, 571 F.3d 238, 243 (2d Cir. 2009) (quoting Cent.

Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994)) (quoted in Govt. II

at 24). But the choice is not quite so binary as the government implies: a reliance on outright

as to suggest that its limitations imply a legislative prohibition of other actions. Id. at 38-39. The

government did not thereafter return to the question of statutory construction, and it similarly

deflected the question in its post-hearing submission. See Govt. III at 7 (acknowledging the need to

interpret the "usages and principles of law" clause as a whole, and citing cases in support of its view on

the matter, but offering no argument about how to give independent meaning to both "usages" and

"principles" consistent with that view). Moreover, as explained above, see n.9, supra, the principal

authority on which the government relies in that argument - and indeed the source of the sole

rationale, namely, that "federal courts may avail themselves of all auxiliary writs 'unless appropriately

confined by Congress[,]" id. (quoting N.Y. Tel. Co., 434 U.S. at 171) - does not actually purport to

interpret the AWA's "usages and principles of law" clause, but rather its "necessary or appropriate"

clause.

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prohibition is not the sole alternative to the chaos of attributing significance to mere legislative

inaction. As this case makes clear, the record available to a court considering an application under the

AWA will likely have a wealth of information beyond mere congressional inaction - including an array

of legislative proposals and hearings that provide a stronger basis for the inferences to be drawn from

the ultimate absence of enacted legislation.

As a threshold matter, I respectfully disagree with the government's view of what is and is not

practical. The duty of faithful adherence to statutory text does not relieve the courts of the frequent

need to make judgments about legislative intent, nor does it restrict them to only such interpretive

tools as a dictionary may provide.²⁰ There is no reason that a judge, ably guided by competent counsel

for adversarial parties as I am here, cannot compare a proposed order under the AWA with the

surrounding body of pertinent laws to determine how consonant the two may be.²¹

²⁰ For example, in the conceptually similar context of preemption analysis, the Second Circuit recently

observed that even the absence of a full legislative record, which may impede such analysis, "does not

change the fact that a court's primary purpose in statutory interpretation is to discern legislative

intent." Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393, 420 (2d Cir. 2013) (internal

quotation marks, citation, and footnote omitted); see also Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury,

445 F.3d 136, 145 (2d Cir. 2006) (Sotomayor, J.) (holding, in the context of Interstate Commerce Act

preemption, that a court "must consider any specific expressions of legislative intent in the statute

itself as well as the legislative history").

²¹ That is precisely what the Supreme Court did in N.Y. Tel. Co. Instead of simply observing that no

law prohibited the court from ordering the telephone company to make its facilities available to install

a pen register - which is all that would have been necessary under the government's reading of the

AWA - the Court took pains to explain why such an order was consistent with "more recent

congressional actions." 434 U.S. at 176. It discerned what "Congress clearly intended to permit[,]" id.,

and rested its decision on "the clear indication by Congress that the pen register is a permissible law

enforcement tool[.]" Id. at 178. The results and opinions in other cases are likewise inherently in

tension with the government's understanding of the breadth of the AWA's gap-filling function. See, e.g.,

Pennsylvania Bureau of Correction, 474 U.S. at 39 (denying request for AWA order requiring Marshals

Service to transport state prisoners to federal courthouses because the applicable statutory language

required such assistance from the custodian "but extends this duty to no other"); Application of the United

States for Relief, 427 F.2d 639, 644 (9th Cir. 1970) (denying request for AWA order to telephone

company to provide needed technical assistance for wiretap because Congress "omitted any reference

to judicial power to require" such assistance).

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Beyond its unduly pessimistic assumptions about a court's practical ability to properly apply

the "usages and principles" clause unless strictly constrained, the government's construction of the

AWA produces absurd results in application. If, for example the President sent to Congress a bill

explicitly authorizing a court to issue the kind of order the government seeks here, and if every single

member of the House and Senate were to vote against the enactment of such a law citing the kinds of

data security and personal privacy concerns that Apple now embraces, the government would

nevertheless describe the order sought here as permissible because Congress had merely rejected the

bill - however emphatically, and however clear its reasons for doing so - rather than affirmatively

passing legislation to prohibit the executive branch's proposal. Yet in such circumstances, it would be

absurd to posit that the authority the government sought was anything other than obnoxious to the

law.²²

An even starker illustration of the absurdity the government's construction produces is that it

does not allow a court to deem an action beyond the AWA's reach even if it is an exercise of authority

that had formerly been available under a statute that Congress elected to repeal because it was

persuaded on policy grounds to retract such authority from the executive. Thus, for example, if

communications service providers were to persuade Congress that CALEA had imposed

unreasonable burdens on them that threatened their ability to remain in business, Congress could

make the choice to repeal that law - thereby removing the statutory obligation to provide certain types

of assistance to law enforcement. And yet in the absence of a statute affirmatively prohibiting the

²² A legislature so united in its opposition to a presidential proposal could of course, in an effort to

conclusively forestall the possibility that a court might endorse such absurdity, pass a prohibiting

statute. But if the President's proposal, while overwhelmingly opposed, nevertheless had the support

of the bare minimum number of legislators required to sustain a presidential veto, Congress could

defeat the President's proposal but could not enact affirmative legislation prohibiting it. Under such

circumstances, however, it would still be easy - and, in my view, correct - for a court to conclude that

the proposed order could not fairly be described as agreeable to the usages and principles of law.

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government from requiring a company to provide such assistance, the government would read the

AWA to nevertheless allow a court to order those same companies to provide precisely the same

assistance to law enforcement that Congress had decided no longer to compel.

In short, whatever else the AWA's "usages and principles" clause may be intended to

accomplish, it cannot be a means for the executive branch to achieve a legislative goal that Congress

has considered and rejected. But because such rejection can take many forms, only one of which (and

arguably the least likely in most circumstances) is outright prohibition, the government's argument

here is manifestly irreconcilable with the statute.

The government's position also produces a wholly different kind of absurdity: the idea that the

First Congress might so thoroughly undermine fundamental principles of the Constitution that many

of its members had personally just helped to write or to ratify. Its preferred reading of the law - which

allows a court to confer on the executive branch any investigative authority Congress has decided to

withhold, so long as it has not affirmatively outlawed it - would transform the AWA from a limited

gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for

upending the separation of powers by delegating to the judiciary a legislative power bounded only by

Congress's superior ability to prohibit or preempt. I conclude that the constitutionality of such an

interpretation is so doubtful as to render it impermissible as a matter of statutory construction.

The AWA was enacted as part of the Judiciary Act of 1789, which Justice O'Connor has

described as "the last great event in our Nation's founding" and part of "the triad of founding

documents, along with the Declaration of Independence and the Constitution itself[.]" Sandra Day

O’Connor, The Judiciary Act of 1789 and the American Judicial Tradition, 59 U. Cin. L. Rev. 1, 3 (1990); see

also Dimitri D. Portnoi, Resorting to Extraordinary Writs: How the All Writs Act Rises to Fill the Gaps in the

Rights of Enemy Combatants, 83 N.Y.U. L. Rev. 293, 296 (2008) (quoting same and providing further

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discussion of the AWA's importance). It is no coincidence that an act of such foundational

importance, and so essential to the implementation of the constitutional scheme of a government of

limited powers carefully allocated among three separate branches, was enacted during the First Session

of the First Congress - because so many of that legislature's members had themselves taken part in

creating the Constitution itself. Indeed, more than half of the delegates to the Constitutional

Convention who signed the Constitution (as well as several dozen delegates to the various state

ratifying conventions) were involved in the enactment of Judiciary Act of 1789.²³

It is wholly implausible to suppose that with so many of the newly-adopted Constitution's

drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that

document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a

Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the

government proposes when it insists that a court may empower the executive to exercise power that

the legislature has considered yet declined to allow. It is a reading that thoroughly undermines both the

legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need

to affirmatively ban the proposed authority) and the more general protection against tyranny that the

Founders believed required the careful separation of governmental powers. See, e.g., Mistretta v. United

States, 488 U.S. 361, 380 (1989) ("[T]he separation of governmental powers into three coordinate

²³ Seventeen delegates to the Constitutional Convention served as members of the First Congress,

including, most tellingly, James Madison - the author of the Federalist papers' explication of the

principle of separation of powers. In addition, President Washington, who signed the Judiciary Act

into law, had likewise represented Virginia at the Convention. See The Federalist Nos. 47, 51 (James

Madison); Paul Taylor, Congress's Power to Regulate the Federal Judiciary: What the First Congress and the First

Federal Courts Can Teach Today's Congress and Courts, 37 Pepp. L. Rev. 847, 868 (2010) (detailing the

extensive support for the Judiciary Act of 1789 among member of the First Congress who had been

delegates to either the Constitutional Convention or the several state ratification conventions) (citing,

inter alia, Encyclopedia of American History 145 (Richard B. Morris ed., 6th ed. 1982)); About the

Signers, http://www.constitutionfacts.com/us-constitution-amendments/about-the-signers/ (last

visited Feb. 29, 2016).

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Branches is essential to the preservation of liberty…. Madison … said: 'No political truth is certainly of

greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty.'")

(quoting The Federalist No. 47, p. 324 (J. Cooke ed. 1961); case citations omitted).

The proposition that the government's interpretation of the AWA produces such a violation

of the separation-of-powers doctrine is not simply a matter of taking an argument to a speculative,

albeit logical, conclusion. To the contrary, it reflects what is going on right now, in this case. The

Application before this court is by no means singular: the government has to date successfully invoked

the AWA to secure Apple's compelled assistance in bypassing the passcode security of Apple devices

at least 70 times in the past, see Tr. at 8; it has pending litigation in a dozen more cases in which Apple

has not yet been forced to provide such assistance; and in its most recent use of the statute it goes so

far as to contend that a court - without any legislative authority other than the AWA - can require

Apple to create a brand new product that impairs the utility of the products it is in the business of

selling. It is thus clear that the government is relying on the AWA as a source of authority that is

legislative in every meaningful way: something that can be cited as a basis for getting the relief it seeks

in case after case without any need for adjudication of the particular circumstances of an individual

case (as the arguments that the government relies on here to justify entering an AWA order against

Apple would apply with equal force to any instance in which it cannot bypass the passcode security of

an Apple device it has a warrant to search).²⁴

²⁴ Assuming that the power the government believes the AWA to confer on the court can properly be

characterized as legislative does not, standing alone, necessarily mean that it runs afoul of the

separation of powers doctrine. "Congress may delegate to the Judicial Branch nonadjudicatory

functions that do not trench upon the prerogatives of another Branch and that are appropriate to the

central mission of the Judiciary." Mistretta, 488 U.S. at 388. But as explained above, the government's

reading would indeed trench upon the legislature's prerogative, by making it impossible in some

circumstances to effectively prohibit the executive from gaining a power it seeks unless it can do so

with a veto-proof supermajority.

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It is also clear that the government has made the considered decision that it is better off

securing such crypto-legislative authority from the courts (in proceedings that had always been, at the

time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that

open legislative debate might produce a result less to its liking. Indeed, on the very same day that the

government filed the ex parte Application in this case (as well as a similar application in the Southern

District of New York, see DE 27 at 2), it made a public announcement that after months of discussion

about the need to update CALEA to provide the kind of authority it seeks here, it would not seek such

legislation. See James B. Comey, "Statement Before the Senate Committee on Homeland Security and

Governmental Affairs," (Oct. 8, 2015),

homeland ("The United States government is actively engaged with private companies to ensure they

understand the public safety and national security risks that result from malicious actors' use of their

encrypted products and services. However, the administration is not seeking legislation at this time.").

The government's interpretation of the breadth of authority the AWA confers on courts of

limited jurisdiction thus raises serious doubts about how such a statute could withstand constitutional

scrutiny under the separation-of-powers doctrine. It would attribute to the First Congress an

anomalous diminishment of its own authority (to deny a request to increase the executive's

investigative powers it deemed inadvisable simply by declining to enact it) as well as an equally

implausible intention to confer essentially unlimited legislative powers on the judiciary. Adopting that

interpretation

would fly in the face of the doctrine of constitutional avoidance, which "allows courts

to avoid the decision of constitutional questions" by providing "a tool for choosing

between competing plausible interpretations of a statutory text, resting on the

reasonable presumption that Congress did not intend the alternative which raises

serious constitutional doubts."

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Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 808 (2d Cir. 2015) (quoting Clark v. Martinez, 543 U.S.

371, 381 (2005)) (emphasis in original); see also Clark, 543 U.S. at 380-81 ("If one of [two plausible

statutory constructions] would raise a multitude of constitutional problems, the other should prevail -

whether or not those constitutional problems pertain to the particular litigant before the Court."). I

therefore reject the government's interpretation of the AWA's gap-filling function, and conclude that a

judicial order that would confer authority that Congress has considered and decided not to enact is not

"agreeable to the usages and principles of law."

Applying that interpretation in this case compels the conclusion that the AWA does not

authorize the relief the government seeks. In my initial Memorandum and Order in this case, I

discussed at some length the history of Congressional consideration in the decades since CALEA's

enactment of updates to the statute that would confer - or withhold - the kind of authority at issue

here to compel private actors to assist the government in technologically complex investigations. See

2015 WL 5920207, at *1-3.²⁵ After reviewing that history, I concluded that "the absence of any explicit

statutory authority for the relief the government seeks cannot be attributed to a failure of legislators to

consider such an enactment." Id. at *3. Nothing in the subsequent submissions from the government

or Apple suggests a basis for abandoning that conclusion. I therefore conclude that what the

government seeks here is "to have the court give it authority that Congress chose not to confer." Id. at

²⁵ That history includes the FBI's briefing of Congress in 2009 about the so-called "Going Dark"

problem and drafting legislation to address it in part by amending CALEA to cover companies such as

Apple; then-Senator Biden's 1991 bill requiring companies to ensure law enforcement access to the

plain text contents of communications when authorized by law; a legislative hearing before the House

Subcommittee on Counterterrorism and Intelligence addressing in part law enforcement agencies'

challenges in overcoming technological barriers to accessing data; another hearing before the Senate

Judiciary Committee in 2015 entitled “Going Dark: Encryption, Technology, and the Balance Between

Public Safety and Privacy" during which the Deputy Attorney General and FBI Director jointly called

on Congress to legislate on the matter; and the submission of three separate bills in 2015, each of

which would have precluded the government from forcing a private entity such as Apple to provide

the kind of assistance at issue here. See 2015 WL 5920207, at *1-3.

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*1 - and that, for the reasons explained above, granting such a request is not "agreeable to the usages

and principles of law."

Accordingly, because the government's Application fails to satisfy the AWA's statutory

requirements, I must deny the request for relief regardless of any analysis of the discretionary factors

under N.Y. Tel. Co. As discussed below, however, consideration of those factors would in any event

lead to the same result.

Discretionary Factors

Closeness

Apple's Relationship to Feng's Criminal Activity

In N.Y. Tel. Co., the Supreme Court held that where there was probable cause to believe that a

telephone company's own property was "being employed to facilitate a criminal enterprise on a

continuing basis[,]" and where the company was " a highly regulated public utility with a duty to serve

the public," the company was not "so far removed from the underlying controversy that its assistance

could not be permissibly compelled." 434 U.S. at 174. I explained in the Memorandum and Order why

it appeared that the circumstances of this case are materially different. See 2015 WL 5920207, at *5.

After considering the later-submitted arguments from the government and Apple, I adhere to that

view, and conclude that unlike the public utility in N.Y. Tel. Co., Apple is too far removed from Feng's

criminal conduct to have any obligation to assist the DEA's investigation.

To the extent that Feng used his iPhone in committing crimes, he used his own property, not

Apple's. Unlike the telephone company in N.Y. Tel. Co., which owned the facility used for criminal

communications, Apple has no ownership interest in anything that the record reveals Feng used to

commit a crime. And unlike the telephone company - "a highly regulated public utility with a duty to

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serve the public," 434 U.S. at 174 - Apple is a private entity with no greater duty to serve the public

than any other business.

The government argues that Apple's relationship to Feng's criminal activity is sufficiently

close, notwithstanding those differences, because, while Feng owned the device itself, he merely

licensed from Apple the iOS software on which it runs. See Govt. II at 13. But while the government

ably demonstrates what the license forbade Feng from doing - he could not lawfully "rent, lease, lend,

sell, redistribute or sublicense the iOS Software[,]" id. (quoting license agreement ¶ B(3)) - it does not

explain the significance of that fact in determining the proximity of Apple's relationship to Feng's

conduct. As far as I can discern from the record, Feng did not at any time "rent, lease, lend, sell,

redistribute, or sublicense" Apple's software; what he did "sell" or "redistribute" was

methamphetamine - a course of conduct in which Apple was not involved. Nor does the record

support an inference that Feng in any way used the licensed software itself - as opposed to the data it

allowed Feng to store on the hardware Apple no longer owns - to facilitate his crimes; to the contrary

the record contains an explicit description of the ways in which the government believes Feng used his

iPhone to commit his crimes as well as the types of evidence the DEA agents expected to find on it. See

Device Application ¶¶ 7-28 & Attachment B. Nothing in that description even remotely suggests that

the licensed software played any meaningful role in Feng's crime comparable to the role the telephone

company's property played in the crimes under investigation in N.Y. Tel. Co.²⁶

²⁶ If Apple's retention of intellectual property rights in the software deployed in a device sold to the

public sufficed to render it sufficiently close, for purposes of the AWA, to any crime committed by any

user of such a device, it would eventually render the first discretionary factor under N.Y. Tel. Co. a dead

letter. As constantly increasing computing power is continually squeezed into ever smaller storage

devices, the category of consumer products containing licensed software will continue to grow. In a

world in which so many devices, not just smartphones, will be connected to the Internet of Things, the

government's theory that a licensing agreement allows it to compel the manufacturers of such

products to help it surveil the products' users will result in a virtually limitless expansion of the

government's legal authority to surreptitiously intrude on personal privacy.

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Ultimately, the government's point is not that Apple in any way facilitated Feng's criminal

conduct, but rather that it reaps profits from selling devices (and leasing the software on which those

devices run) to a vast group of consumers among whom there are inevitably some criminals. From that

premise it draws the following conclusion: "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." Govt. II at

13-14. That opinion may be perfectly defensible as moral precept (however much it may be in tension

with the legal system's otherwise broad support for free enterprise), but it has nothing to do with the

pertinent legal inquiry.²⁷ Apple had no involvement in Feng's crime, and it has taken no affirmative

action to thwart the government's investigation of that crime (a matter discussed in greater detail

below). Apple lawfully sold to Feng, as it sells to millions of law-abiding individuals and entities

(including the government itself), a product that can effectively secure its stored data for the protection

of its owner.²⁸ Feng used that device for criminal purposes and left it locked, and the government says

²⁷ It is no surprise that references to the idea that all citizens have some sort of a duty - moral, if not

legal - to assist law enforcement upon demand can occasionally be found in judicial opinions. For

example, in an 1895 decision upholding a citizen's right to assist the government in enforcing the law

by providing information about suspected criminal activity, the Supreme Court held that "such

information given by a private citizen, is a privileged and confidential communication, for which no

action of libel or slander will lie[.]" In re Quarles, 158 U.S. 532, 535-36 (1895). In introducing the topic,

the Court included dicta suggesting - without any citation to authority - that that right is also an

obligation. Id. at 535 ("It is the duty and the right, not only of every peace officer of the United States,

but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the

peace of the U.S. It is the right, as well as the duty, of every citizen, when called upon by the proper

officer, to act as part of the posse comitatus in upholding the laws of his country."). Nothing in Quarles

suggests that the "duty" to which the Court referred is legal rather than moral.

²⁸ Just as the criminal Feng has done, the United States government has chosen to entrust extremely

sensitive communications and secret documents - including those of many of the prosecutors and

judges who work in this court - to the passcode protections and other robust data security measures

available on a variety of Apple devices. That observation does not mean Apple should have any greater

or lesser obligation, as a matter of law or morality, to accede to the demands of law enforcement

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it cannot open the lock without Apple's help. Nothing in N.Y. Tel. Co. remotely suggests that in such

circumstances, Apple is so closely related to the crime under investigation that a court can order its

assistance under the AWA.

Apple's Relationship to the Government's Investigation

The government alternatively posits that Apple is sufficiently close to the underlying

controversy for purposes of the AWA because its "software now thwarts the execution of the search

warrant" for Feng's iPhone. Govt. II at 15. That formulation comes after (but subtly reinterprets) an

earlier quotation from the opinion in N.Y. Tel. Co. As the government notes, in arguing that the court

has authority to grant relief under the AWA (as opposed to the distinct question of whether such

authority should be exercised as a matter of discretion),

The Court held that "[t]he power conferred by the Act extends, under appropriate

circumstances, to persons who, though not parties to the original action or engaged in

wrongdoing, are in a position to frustrate the implementation of a court order or the

proper administration of justice, … and encompasses even those who have not taken

any affirmative action to hinder justice."

Govt. II at 11 (quoting N.Y. Tel. Co., 434 U.S. at 174).

There is no question that the court has the authority under the AWA to compel Apple - or

anyone else for that matter - to take action regardless of whether it was involved in the underlying

criminal conduct, so long as it does so "under appropriate circumstances." N.Y. Tel. Co., 434 U.S. at

174. But the proposition that Apple's purported ability to "thwart" the government's investigation

renders it sufficiently close to the underlying controversy as to make such an order appropriate is

ultimately unpersuasive. Apple is not doing anything to keep law enforcement agents from conducting

agencies. But it does highlight the proposition that forcing Apple to compromise the data security

measures it offers its customers may adversely affect many who rely on such technology for purposes

the government would endorse.

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their investigation. Apple has not conspired with Feng to make the data on his device inaccessible.²⁹

More importantly, perhaps, it has not even done what the telephone company did in N.Y. Tel. Co. -

namely, it has not barred the door to its property to prevent law enforcement agents from entering and

performing actions they were otherwise competent to undertake in executing the warrant for

themselves.³⁰

Indeed, the government's complaint is precisely that Apple is doing nothing at all. If Feng had

not engaged the passcode security on his device, or if the government had been able to secure an order

compelling Feng to unlock the phone on pain of contempt sanctions, the government might well be in

a position to seize the iPhone's data without Apple's assistance. See 2015 WL 5920207, at *5 & n.3.³¹

²⁹ In making this point, I do not simply rest on precise requirements for holding a party liable as a

coconspirator. Not only has Apple done nothing wrong in marketing devices with such strong data

security features, it has exercised a freedom that Congress explicitly deemed appropriate in balancing

the needs of law enforcement against the interests of private industry. Specifically, in writing CALEA,

Congress included a provision making clear that the statute "does not authorize any law enforcement

agency or office … to prohibit the adoption of any equipment, facility, service, or feature by … any

manufacturer of telecommunications equipment, or any provider of telecommunications support

services." 47 U.S.C. § 1002(b)(1)(B). In other words, CALEA provides that law enforcement agencies

cannot do precisely what the government suggests here: dictate to a private company in the business of

manufacturing smartphones the extent to which it may install data security features on such devices.

³⁰ In N.Y. Tel. Co., the agents would normally have been able to install the authorized pen register

without the company's assistance but for the fact that the subject telephone's wires were so placed as

to prevent the agents from gaining surreptitious access. The agents thus needed the telephone

company not to provide technical expertise they lacked, but only to step out of the way and let them

perform their authorized surveillance on company property. See 434 U.S. at 162-63.

³¹ The government argues that a court order compelling Feng to unlock the iPhone would be futile

because he claims to have forgotten the passcode. See Govt. II at 20. More surprisingly, it takes the

position that "[c]ompelled decryption raises significant Fifth Amendment issues and creates risk that

the fruit of the compelled decryption could be suppressed." Id. at 21. I assume the government is not

concerned that such an order of compulsion would violate Feng's Fifth Amendment privilege against

self-incrimination. See Govt. II at 19 (citing United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995) for the

proposition that "an [AWA] order may be used to require the production of a handwriting exemplar

… even though the subject may face criminal sanctions as a result of his compliance"); Com. v. Gelfgatt,

11 N.E.3d 605, 612 (Mass. 2014) (compelling defendant to enter passcode into encrypted computers

did not violate the Fifth Amendment right against self-incrimination); Schmerber v. California, 384 U.S.

757, 760-65 (1966) (compelled extraction and analysis of blood sample is not compelled testimony and

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Thus, Apple is not "thwarting" anything - it is instead merely declining to offer assistance. There may

well be some for whom the distinction between a third-party's active obstruction of law enforcement

and its passive refusal to help is meaningless as a matter of policy. But it is hardly meaningless as a

matter of legal analysis.³² In any event, the distinction is one that precludes a finding that Apple's

relationship either to Feng's crime or to the government's investigation of it is sufficiently similar to

the telephone company's corresponding role in N.Y. Tel. Co. as to justify an order compelling Apple's

assistance.³³

therefore does not violate the Fifth Amendment right against self-incrimination). It may well be, as the

government suggests, that "[c]ompelled decryption raises significant Fifth Amendment issues" relating

to the due process rights of Feng or anyone else who might be compelled to perform such decryption,

but I need not address such concerns to resolve the issue now before the court.

³² The distinction also helps to understand why so many of the cases that the government cites as

precedent for using the AWA "in support of warrants in a wide variety of contexts[,]" Govt. II at

11-12, offer little if any useful guidance here. In two of the cases, lower courts simply followed N.Y.

Tel. Co. to order telephone companies to assist with trap and trace devices - orders wholly comparable

in every meaningful respect to the pen register order at issue in N.Y. Tel. Co. itself. See In re Application,

610 F.2d 1148, 1155 (3d Cir, 1979); In re Application, 616 F.2d 1122, 1129 (9th Cir. 1980). In four other

cases on the government's list, the subject of the order was in possession of evidence of the crime

under investigation and was ordered to produce or allow law enforcement access to that evidence - a

circumstance wholly inapposite here, as Apple is not alleged to possess any evidence of Feng's crimes.

See United States v. Doe, 537 F. Supp. 838, 840 (E.D.N.Y. 1982) (telephone company ordered to produce

toll records); United States v. X., 601 F. Supp. 1039, 1042 (D. Md. 1984) (same); United States v. Hall, 583

F. Supp. 717, 722 (E.D. Va. 1984) (bank ordered to produce credit card records); In re Application of the

United States for an Order Directing X to Provide Access to Videotapes, 2003 WL 22053105, at *3 (D. Md. Aug.

22, 2003) (landlord ordered to provide access to security camera video recordings).

³³ I address below, in the context of analyzing whether the relief sought here is unduly burdensome,

the hypothetical example an application under the AWA to compel a drug company that had decided

to get out of the business of producing drugs used in executions to supply such drugs to the

government if they were otherwise unavailable. At oral argument, the government faulted the

hypothetical as "inflammatory," see Tr. at 47, but did not contend that it was unrealistic. Nor could it

fairly raise such an objection. Before writing the Court's opinion in opinion in Glossip v. Gross, 135 S. Ct.

2726 (2015), Justice Alito posed the following question at oral argument:

JUSTICE ALITO: … Now, this Court has held that the death penalty is constitutional.

It's controversial as a constitutional matter. It certainly is controversial as a policy

matter. Those who oppose the death penalty are free to try to persuade legislatures to

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"Minimum Contacts"

In its post-hearing brief, the government offered no new argument about what Apple has done

that renders it close enough to Feng's crime for purposes of N.Y. Tel. Co., but it did posit a new legal

standard to apply in considering that discretionary factor. It suggests that all that is required is that

Apple have "minimum contacts" - although to what, the government does not say. See Govt. III at 6.

It wrests that suggestion from the wholly inapposite usage of the phrase in United States v. Int'l

Brotherhood of Teamsters, 907 F.2d 277, 281 (2d Cir. 1990). As explained below, the argument is

unpersuasive.

As another court aptly summarized the nature of the dispute in Teamsters:

[T]he All Writs Act was used in Teamsters to remove state court litigation so as to aid in

the enforcement of a district court's order and to prevent repetitive and burdensome

litigation and promote judicial economy, that result was necessary because a consent

decree that had been in place for three years was threatened by collateral state lawsuits.

The district court determined that an injunction was needed to protect the district

court's jurisdiction over the parties to the consent decree, and proceeded under the

authority of the All Writs Act.

Nat'l Fuel Gas Supply Corp. v. 138 Acres of Land in Vill. of Springville, Cty. of Erie, State of New York, 186 F.

Supp. 2d 339, 345 (W.D.N.Y. 2001).

abolish the death penalty. Some of those efforts have been successful. They're free to

ask this Court to overrule the death penalty.

But until that occurs, is it appropriate for the judiciary to countenance what amounts to

a guerilla war against the death penalty which consists of efforts to make it impossible

for the States to obtain drugs that could be used to carry out capital punishment with

little, if any, pain?

Glossip v. Gross, 2015 WL 1929998 (U.S. Apr. 29, 2015) (transcript of oral argument) at *14. If the

government can discern in Apple's conduct here a level of obstruction sufficient to allow a court to

compel is assistance under AWA, Justice Alito's question in Glossip would easily provide the basis for a

judge to find that a drug company's "guerilla war[fare]" served only to thwart a state's lawful

implementation of a constitutionally sound execution, and would therefore make the company eligible

for an order of compulsion. The possibility is anything but fanciful.

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Thus, in Teamsters, there was no question about whether the parties affected by the court's use

of an AWA order were too far removed from involvement in the underlying dispute - the question

was instead whether the court had personal jurisdiction over those non-parties who were located

outside of New York. See Teamsters, 907 F.2d at 281. Unsurprisingly, the court answered that question

of personal jurisdiction by invoking the applicable constitutional standard for a court's assertion of

personal jurisdiction - the "minimum contacts" standard. See id. (citing International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945). Here, by contrast, the question is precisely what it was not in

Teamsters: there is no dispute about the court's personal jurisdiction over Apple, but there is a dispute

about whether Apple is too far removed from involvement Feng's conduct to be subject to an order

under the AWA.

Burdensomeness

The Supreme Court acknowledged in N.Y. Tel. Co. that a court exercising its authority under

the AWA may not impose "unreasonable burdens" on the subjects of its orders. 434 U.S. at 172. In

explaining why compelling the telephone company to help the government install a pen register

imposed no such unreasonable burden in that case, the Court wrote the following:

[I]t can hardly be contended that the Company, a highly regulated public utility with a

duty to serve the public, had a substantial interest in not providing assistance. Certainly

the use of pen registers is by no means offensive to it. The Company concedes that it

regularly employs such devices without court order for the purposes of checking

billing operations, detecting fraud, and preventing violations of law. It also agreed to

supply the FBI with all the information required to install its own pen registers. Nor

was the District Court's order in any way burdensome. The order provided that the

Company be fully reimbursed at prevailing rates, and compliance with it required

minimal effort on the part of the Company and no disruption to its operations.

Id. at 174-75 (citations omitted).

The salient points that the Court highlighted as the basis for finding a lack of unreasonable

burdens in N.Y. Tel. Co. are virtually all absent here. First, Apple is not a "highly regulated public utility

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with a duty to serve the public" - the government does not suggest that it is subject to greater

regulation than other businesses, it is not a public utility, and it has a duty is to serve its shareholders

rather than the public. Second, Apple has indeed contended that it is in its interest as a private

company not to provide the assistance sought here: Apple seeks to succeed in a competitive market by

being seen to assume "a leadership role in the protection of its customers' personal data against any

form of improper access." Apple I at 4. Further, Apple claims to fear - reasonably or otherwise - that

providing the requested assistance in the absence of clear legal authority (as I conclude is lacking)

"could threaten the trust between Apple and its customers and substantially tarnish the Apple brand."

Id.

Third, unlike the pen register at issue in N.Y. Tel. Co., the assistance the government seeks here

- bypassing a security measure that Apple affirmatively markets to its customers - is not something

that Apple would normally do in the conduct of its own business and is, at least now, plainly "offensive

to it." N.Y. Tel. Co., 434 U.S. at 174.³⁴ To be sure, Apple's view of what it finds offensive appears to

have changed since the days when it routinely voiced no objection to cooperating with AWA orders,

and the government's displeasure with that change is as understandable as it is vehement. But however

³⁴ In considering the burden the requested relief would impose on Apple, it is entirely appropriate to

take into account the extent to which the compromise of privacy and data security that Apple promises

its customers affects not only its financial bottom line, but also its decisions about the kind of

corporation it aspires to be. The fact that the government or a judge might disapprove Apple's

preference to safeguard data security and customer privacy over the stated needs of a law enforcement

agency is of no moment: in the absence of any other legal constraint, that choice is Apple's to make,

and I must take into account the fact that an order compelling Apple to abandon that choice would

impose a cognizable burden on the corporation that is wholly distinct from any direct or indirect

financial cost of compliance.

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late Apple may have come to its current view about the way it wishes to exercise its autonomy, the

record offers no reason to question its sincerity.³⁵

Fourth, again unlike the telephone company in N.Y. Tel. Co., which "agreed to supply the FBI

with all the information required to install its own pen registers[,]" 434 U.S. at 175, the record suggests

that Apple has never offered the government the information needed to bypass an iPhone's passcode

security on its own - and would never do so. To the contrary, Apple is clearly staking out the position

that as a matter of protecting its customers' privacy and data security (and as a matter of securing the

benefits it derives from doing so), it does not want the government or anyone else to have access to the

information the government would compel it to use to provide the requested assistance at issue here.

Apple has explicitly stated that it will comply with a lawful court order to assist in bypassing the

passcode security on Feng's iPhone, see Tr. at 10, but it has never hinted that it would prefer to simply

let the government have the information necessary to do so.

Fifth, yet again unlike the telephone company in N.Y. Tel. Co., which could install a pen register

"with … minimal effort … and no disruption to its operations[,]" 434 U.S. at 175, the record

³⁵ I thus respectfully disagree with the government's contention that Apple's objection is not

"conscientious" but merely a matter of "its concern with public relations." Govt. III at 5. First, I see no

reason why a company that succeeds or fails based largely on its ability to maintain congenial relations

with the public - that is, with its potential customers - should not be concerned about public relations.

Moreover, for all of the government's manifest outrage, there is simply nothing in the record that leads

me to question that Apple's recent stance against being compelled to assist the government in

bypassing the security it markets to its customers is anything other than a genuine reflection of both

how it perceives its private interest in commercial success and the policy preferences of its leaders. The

tension between law enforcement and data security in this case and others like it presents a genuine

dilemma for people of good faith - indeed, in congressional testimony on February 25, 2016, the FBI's

Director described it as "the hardest question I've seen in government." House of Representatives,

Permanent Select Committee on Intelligence, Committee Hearing, 2016 WL 755376 (transcript). The

fact that Apple resolves that question in a way not to the government's liking does not mean that it is

acting in bad faith, or even that it is necessarily putting selfish interests above the public good. As far as

I can discern from the record, it means only that the parties have an honest disagreement about how

best to accommodate competing legitimate interests.

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demonstrates that bypassing the passcode security of just one iPhone "diverts man hours and

hardware and software from Apple's normal business operations." Apple I at 3. And while that burden

by itself is not substantial in the case of "a single device in good working order, running an operating

system earlier than iOS 8," id., the record of this case makes clear that the burdens the government

seeks to impose on Apple under the authority of the AWA are not nearly so limited. The government

has already secured such assistance at least 70 times before filing the instant petition, it has a dozen

more such applications pending, and it clearly intends to continue seeking assistance that is similarly

burdensome - if not far more so - for the foreseeable future. In this context, the government's

assurance that "any cumulative burden is minimal and likely to decrease with regard to the type of relief

requested here[,]" Govt. II at 16 (emphasis added) is particularly unconvincing: the government

predicates its argument on the fact that devices using pre-iOS 8 software are becoming an ever smaller

slice of Apple's market. See id. But that argument omits the fact that the advent of more recent

operating systems has done nothing to slow the government's requests - instead, the government

continues to seek orders compelling Apple's assistance in bypassing the passcode security of more

recent models and operating systems, notwithstanding the fact that such requests are more

burdensome than the one pending here.³⁶

³⁶ Even taking the government's argument at face value, I find it unpersuasive because there are at

least two reasons why a court considering the reasonableness of the burdens to be imposed by

compelling a private party to assist the government under the AWA should take into account

cumulative burdens beyond the financial costs directly associated with carrying out that order in

isolation. First, as discussed above, the authority the government asks the court to exercise is

essentially legislative in nature - and the record makes clear that the government has chosen to rely on

the judiciary to achieve such effectively legislative results. It is therefore all the more important for the

court, if it is going to engage in such law-making based on an embrace of the government's

understanding of what is "agreeable to the usages and principle of law," to exercise such authority in

the same way that a legislature would. Congress typically enacts legislation that imposes ongoing

burdens on private parties only after developing a full and transparent record in open hearings about

the costs and benefits of the proposed law, based on input from all potential stakeholders. It generally

does not (or, at a minimum, should not) impose such burdens based on information received ex parte

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Thus, the government's argument that the burdens an AWA order here would impose on

Apple are as negligible as those imposed on the telephone company in N.Y. Tel. Co. cannot withstand

scrutiny. The government's remaining arguments against a finding of burden are similarly

unpersuasive. The government essentially argues that having reaped the benefits of being an American

company, it cannot claim to be burdened by being seen to assist the government. See Govt. II at 19

(noting the "significant legal, infrastructural, and political benefits" Apple derives from being an

American company, as well as its "recourse to the American courts" and to the protection of

"American law enforcement … when it believes that it has been the victim of a crime"); id. at 19-20

("This Court should not entertain an argument that fulfilling basic civic responsibilities of any

American citizen or company … would 'tarnish' that person's or company's reputation.").

Such argument reflects poorly on a government that exists in part to safeguard the freedom of

its citizens - acting as individuals or through the organizations they create - to make autonomous

choices about how best to balance societal and private interests in going about their lives and their

businesses. The same argument could be used to condemn with equal force any citizen's chosen form

of dissent. All American citizens and companies "derive significant legal, infrastructural, and political

benefits from [their] status [as such,]" id. - but that cannot mean that they are not burdened in a legally

and considered in secret proceedings absent some compelling reason not present here. Congress

would undoubtedly consider in this context all of the potential harms to Apple, not just the financial

ones; a court should do no less. Second, a court's decision in a case such as this, although plainly not

controlling in other cases, can nevertheless have some precedential value. It is therefore entirely

possible that a decision in this case that did not take into account the cumulative costs Apple faces as

the government increases its reliance on the AWA to force it to provide investigative assistance in case

after case would effectively limit Apple's ability to have a future court take such rising burdens, no

matter how great, into meaningful consideration.

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cognizable way when forced unwillingly to comply with what they sincerely believe to be an unlawful

government intrusion.³⁷

Similarly, the government's contention that "the burden associated with compliance with legal

process is measured on the direct costs of compliance, not on other more general considerations about

reputations or the ramifications of compliance[,]" id. at 19, is irreconcilable with the opinion in N.Y.

Tel. Co. itself. The Court in that case did not just cite the lack of financial burden on the telephone

company; instead, it took pains to refute the lower appellate court's stated concern about the "severe

threat to the autonomy of third parties who for whatever reason prefer not to render such assistance."

434 U.S. at 171. Indeed, part of its showing in that regard was the observation that the company's

installation of a pen register would not be "offensive to it" - an observation that would be wholly

³⁷ In its post-hearing submission, the government discusses the significance to this case, and to the

Supreme Court's opinion in N.Y. Tel. Co., of Chief Judge Cardozo's observation that "the citizenry may

be called upon to enforce the justice of the State, not faintly and with lagging steps, but honestly and

bravely and with whatever implements and facilities are convenient and at hand." Babington v. Yellow

Taxi Corp., 250 N.Y. 14, 17 (1928) (quoted in N.Y. Tel. Co., 434 U.S. at 175). As I pointed out at oral

argument, Babington involved a state statute that explicitly allowed an officer to conscript private

assistance. Babington, 250 N.Y. at 16 (quoting N.Y. Penal Law (Consol. Laws, c. 40) § 1848: "A person

who after having been lawfully commanded to aid an officer in arresting any person … willfully

neglects or refuses to aid such officer is guilty of a misdemeanor."). In N.Y. Tel. Co., in contrast, no

such specific authority justified the government's demand for the telephone company's assistance, and

the question was whether the AWA provided such authority. The government assures me that such a

distinction "is of no moment." Govt. III at 4. As it explains:

[T]he Supreme Court in N.Y. Telephone Co. cited Babington to emphasize the more

general proposition that it is neither improper nor unusual to expect civilians to assist

law enforcement. As the N.Y. Telephone Co. opinion confirms, just as there is no

impropriety in requiring civilian assistance under a statute, there is likewise no

impropriety in requiring civilian assistance under the All Writs Act.

Govt. III at 4.

Such argument misses an important point by conflating substantive policy questions with

procedural questions about how policy is set. A legislature is of course free to explicitly authorize law

enforcement agents to conscript private assistance under such circumstances as the legislature deems

fit. But citizens are under no such obligation in the absence of such legislation, and Babington cannot

help a court to understand whether the All Writs Act can properly be read to permit a judge, rather

than a legislature, to compel such assistance.

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irrelevant, if not counter-productive, to a decision intended to establish that the only cognizable

burdens under the AWA are financial. Finally, the government makes no effort to explain why

cognizable burdens should be so limited: as the Court explained in N.Y. Tel. Co., the AWA does not

empower a court to impose any burdens that are "unreasonable" - and it said nothing to suggest that

only financial burdens could prove unreasonable.

Finally, I return to the point that the Supreme Court addressed in reversing the Second

Circuit's decision in N.Y. Tel. Co.: the concern that an AWA order compelling a private party to

provide service to the government the non-party finds offensive would "pose a severe threat to [their]

autonomy[.]" 434 U.S. at 171. As discussed above, the Court concluded that no such threat was posed

in that case by the imposition of an obligation on a public utility to perform for the government a task

that it would in any event perform in the pursuit of its own business. But the concern about whether

the AWA, as construed by the government, would confer on the judiciary an overbroad authority to

override individual autonomy cannot be so easily avoided in this case. Nothing in the government's

arguments suggests any principled limit on how far a court may go in requiring a person or company to

violate the most deeply-rooted values to provide assistance to the government the court deems

necessary.

To try to gauge that limit - and to see if one even exists - I deliberately asked the government

at oral argument the provocative question noted above, see n.34 supra, about whether a court could

invoke the AWA to force a drug maker to supply lethal injection drugs notwithstanding the

manufacturer's conscientious objection to capital punishment. See Tr. at 43-48. That the government

had no ready answer at oral argument to a question it deemed so inflammatory was not surprising. But

even in its post-hearing submission, the government offers nothing more than deflection: "Resolution

of the death penalty hypothetical would depend on the particular law, facts, and circumstances if such

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a case were to present itself." Govt. III at 5. That is undoubtedly true, but equally unsatisfactory. If the

government cannot explain why the authority it seeks here cannot be used, based on the same

arguments before this court, to force private citizens to commit what they believe to be the moral

equivalent of murder at the government's behest, that in itself suggests a reason to conclude that the

government cannot establish a lack of unreasonable burden.

If, as the government would have it, the only cognizable measure of an unreasonable burden in

this case is the extent to which Apple might have unreimbursed financial costs arising directly from the

work needed to bypass the passcode security on Feng's iPhone, then granting the requested order

would not impose an unreasonable burden. But the category of unreasonable burdens is not nearly so

narrow, not even as described in the Supreme Court opinion on which the government primarily

relies. Taking into account the several other burdens to which Apple objects - burdens that are no less

real or cognizable simply because they are harder to quantify - I conclude that granting the

government's Application would impose an unreasonable burden on Apple.

Necessity

The government contends that it cannot successfully search Feng's device without Apple's

assistance. See Govt. I at 1-2; Govt. III at 7 ("The government is unable to perform a safe passcode

bypass on its own[.]"). If that assertion is true, the government may be entitled to relief under the

AWA if it can satisfy the remaining statutory requirements and discretionary factors. But if it is false -

if the government has access to resources that would in fact allow it to vindicate this court's

jurisdiction without compelling Apple to take action it finds objectionable - that fact would weigh

heavily against granting relief. As the movant, it is the government's burden to establish the factual

assertions upon which it claims to be entitled to relief. I conclude that it has failed to do so because of

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the conflicting evidence in the record about the availability, from private sources other than Apple, of

technology that would allow the government to bypass the passcode security on Feng's device.³⁸

In its Application in this case, the government originally asserted that its agents cannot bypass

the passcode security of an Apple iPhone. See Govt. I at 1-2. Two months earlier, however, in

opposing a suppression motion in an unrelated criminal case in this district, the government said

something quite different:

[T]he lack of a passcode is not fatal to the government's ability to obtain the records.

That is because [the Department of Homeland Security ("DHS"), Homeland Security

Investigations ("HSI")] is in possession of technology that would allow its forensic

technicians to override the passcode security feature on the Subject iPhone and obtain

the data contained therein. In other words, even if HSI agents did not have the

defendant’s passcode, they would nevertheless have been able to obtain the records

stored in the Subject iPhone using specialized software. The software works to bypass

the passcode entry requirement and "unlock" the cellular telephone without having to

³⁸ Because I conclude that the government has failed to establish necessity for the reasons set forth

below, I need not determine whether its refusal to disclose whether federal intelligence agencies have

the ability to unlock Feng's device is an independent basis for finding a lack of necessity. While the

government's hesitation to reveal what its intelligence agencies can and cannot do is entirely

understandable, and may well be an appropriate exercise of discretion to promote national security,

that does not mean that the choice must be cost-free for the government in this litigation. In some

contexts, such as where the law imposes an affirmative disclosure obligation on the government, it is

reasonable to restrict that obligation to pertinent parts of the executive branch rather than insist that

the government is a unitary whole. See, e.g., United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (for

purposes of the prohibition against the suppression of materially exculpatory information in a criminal

case, imputing to each federal prosecutor constructive knowledge of any information known to any

government office "would inappropriately … adopt a monolithic view of government that would

condemn the prosecution of criminal cases to a state of paralysis") (internal quotation marks and

citations omitted). But this case is not a matter of the government, in response to some external

obligation, seeking to be excused from an unreasonable burden. It is instead a matter of determining

whether the government, in coming forward to seek affirmative relief that requires a factual showing,

can be allowed to withhold information that might demonstrate the falsity of its assertion. As a legal

matter, a court might determine that an intelligence agency's ability to accomplish the technical task at

issue here does not render Apple's assistance unnecessary. But to the extent the government seeks to

avoid having a court make that legal decision by offering the unconditional assertion that "[t]he

government is unable to perform a safe passcode bypass on its own[,]" Govt. III at 7 (emphasis added), it has

an obligation to prove that assertion rather than simply tell the court that such inquiry is off limits. See

id. at 8 ("The government is not required to consult with intelligence agencies[.]").

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enter the code. Once the device is "unlocked" all records in it can be accessed and

copied.

United States v. Adamou Djibo, 15-CR-0088 (SJ), DE 27 at 5 (government's letter to court dated July 9,

2015). At a hearing on the suppression motion in Djibo, the government presented the testimony of a

DHS expert who testified that although the "IP-Box" technology on which the government relied was

both "fairly new" and "finicky," he and others had succeeded in using that technology to bypass

passcode security on some Apple devices, if not the precise kind seized from Djibo. See United States v.

Djibo, --- F. Supp. 3d ----, 2015 WL 9274916, at *6 (E.D.N.Y. Dec. 16, 2015).³⁹

In response to my questions at oral argument about the tension between the factual assertions

the government had offered in the two cases, the government proffered yet a third. Specifically, the

government wrote:

The government has consulted with the testifying agent in Djibo, who noted that the

government's ability to bypass the passcode on an iPhone is highly device-specific, and

depends in part on the specific hardware and software in place. The investigators in

this case have examined the possibility of using various third-party technologies,

including the hacking tool referenced in Djibo, and determined that, in this case, using

such technology on the Target Phone [i.e., Feng's iPhone] presents a non-trivial risk of

data destruction. Specifically, the tool, which serially tests various passcodes until

detecting the correct one, could activate the "erase data" feature of the iPhone and

render the data in the Target Phone permanently inaccessible. By contrast, in this case,

Apple has the unique ability to safely perform a passcode bypass on the Target Phone

without risking such data destruction.

Govt. III at 8. In short, the government, having previously stated both that it cannot bypass an Apple's

passcode security without Apple's help and that it can do so, now says that it depends - and that what

³⁹ The device at issue in Djibo was "an iPhone 5 installed with the iOS 8.1.2 operating system." Id. The

parties appear to agree that the passcode security on that operating system is harder to bypass - even

for Apple - than the software (an iteration of iOS 7) installed on Feng's iPhone 5s. Indeed, at the oral

argument in this case, Apple stated that while it could indeed bypass the passcode security on Feng's

device, it would be impossible to do so on any device running iOS 8 or later versions of the operating

system. Tr. at 58. As the public record of the California action reveals, the government now appears to

believe otherwise. See DE 27-2 (government's memorandum in the California action) at 4-8 (describing

proposed method for Apple to use in bypassing passcode security on a device running iOS 9).

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it depends on is not just which device and which operating system is in question, but also on which

government expert makes the attempt.

In Djibo, the result of that morass of conflicting statements was a finding that the government

had failed to establish that it would inevitably have succeeded in bypassing the passcode security on

Djibo's iPhone. Djibo, 2015 WL 9274916, at *11. That result does not remotely establish the

proposition the government supports here - namely, that it is impossible for it to bypass the security

of an earlier operating system without Apple's help. What it does establish is simply that the

government has made so many conflicting statements in the two cases as to render any single one of

them unreliable. Because it is the government's burden, as the movant seeking relief, to demonstrate a

basis for granting its request, I necessarily conclude that it has failed to establish that the help it seeks

from Apple is necessary for purposes of the test under N.Y. Tel. Co.⁴⁰

III.

Conclusion

In deciding this motion, I offer no opinion as to whether, in the circumstances of this case or

others, the government's legitimate interest in ensuring that no door is too strong to resist lawful entry

should prevail against the equally legitimate societal interests arrayed against it here. Those competing

⁴⁰ Even accepting at face value the government's most recent statement - that the government has

access to third-party technology that might work in this case but that might also risk data destruction -

the history recounted above undermines the government's assertion of necessity in a different way.

That is, read in the light of its most recent statement, the government's position in Djibo was that it

would have inevitably discovered the evidence on the defendant's iPhone because it would have used

the IP-Box technology to secure it - notwithstanding the risk that doing so might destroy the evidence

being sought (the way in which that proposition undermines the government's assertion of inevitable

discovery is an issue in Djibo but not in this case). If that is so, that means that there are some cases -

demonstrably including Djibo - in which Apple's help in bypassing an iPhone's passcode security is

unnecessary not because the government will inevitably succeed in securing evidence on its own, but

rather because the risk of destroying evidence in the attempt to seize it is acceptable. That begs the

question, which the government leaves unanswered here, why such a risk was acceptable in

prosecuting Djibo but not acceptable in prosecuting Feng. Thus, even taking the government at the

most recent of its words, there is no showing that Apple's assistance will accomplish something that

the government itself deems to be a necessity.

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values extend beyond the individual's interest in vindicating reasonable expectations of privacy -

which is not directly implicated where, as here, it must give way to the mandate of a lawful warrant.

They include the commercial interest in conducting a lawful business as its owners deem most

productive, free of potentially harmful government intrusion; and the far more fundamental and

universal interest - important to individuals as a matter of safety, to businesses as a matter of

competitive fairness, and to society as a whole as a matter of national security - in shielding sensitive

electronically stored data from the myriad harms, great and small, that unauthorized access and misuse

can cause.

How best to balance those interests is a matter of critical importance to our society, and the

need for an answer becomes more pressing daily, as the tide of technological advance flows ever

farther past the boundaries of what seemed possible even a few decades ago. But that debate must

happen today, and it must take place among legislators who are equipped to consider the technological

and cultural realities of a world their predecessors could not begin to conceive. It would betray our

constitutional heritage and our people's claim to democratic governance for a judge to pretend that our

Founders already had that debate, and ended it, in 1789.⁴¹

⁴¹ Indeed, as FBI Director Comey observed in the context of the California action:

[W]e have awesome new technology that creates a serious tension between two values

we all treasure: privacy and safety. That tension should not be resolved by corporations

…. It also should not be resolved by the FBI …. It should be resolved by the American

people deciding how we want to govern ourselves in a world we have never seen

before…. I also hope all Americans will participate in the long conversation we must

have about how to both embrace the technology we love and get the safety we need.

James Comey, We Could Not Look the Survivors in the Eye if We Did Not Follow this Lead, Lawfare

(Feb. 21, 2016, 9:03 p.m.) https://www.lawfareblog.com/we-could-not-look-survivors-eye-

if-we-did-not-follow-lead. That "long conversation" among "people deciding how we want to govern

ourselves in a world we have never seen before" will of course be moot if courts presume to make that

decision for the American people based on a perceived assignment of extraordinary authority by 18th

Century legislators. Director Comey's salutary call for meaningful public debate can therefore be

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Ultimately, the question to be answered in this matter, and in others like it across the country,

is not whether the government should be able to force Apple to help it unlock a specific device; it is

instead whether the All Writs Act resolves that issue and many others like it yet to come. For the

reasons set forth above, I conclude that it does not. The government's motion is denied.

SO ORDERED.

Dated: Brooklyn, New York

February 29, 2016

/s/

JAMES ORENSTEIN

U.S. Magistrate Judge

achieved only by recognizing that the All Writs Act does not serve as a mechanism for courts to give

the executive branch authority it fails to secure from the legislature.