Understanding the FBI’s Attempt to Be Able to Search Anyone’s Cell Phone, Part 2

A conflict that developed in early 2016 between the federal government and Apple, the manufacturer of the smartphone model known as the iPhone, has important implications for Fourth Amendment rights in digital technology. FBI investigators sought to compel the company’s assistance in accessing an iPhone’s encrypted contents. In the Matter of the Search of an Apple iPhone Seized during the Execution of a Search Warrant on a Black Lexus IS300 (“In re iPhone”), No. 5:15-mj-00451, ex parte application (C.D. Cal., Feb. 16, 2016). Apple’s CEO refused to comply, stating that it would have a far broader impact than the case at hand, and it would likely put the data security of all of its users at risk. Although the government dropped the case when it found an alternative means of accessing the phone’s contents, a similar situation is certain to occur at some point in the future.

The cellphone at the center of the current case was found in a vehicle belonging to a suspect in a December 2015 mass shooting in San Bernardino, California, which involved alleged terrorist ties. The two shooting suspects were killed by police shortly after opening fire on an office holiday party. Federal law enforcement investigators sought access to the iPhone, but they were unable to do so without a four-digit passcode. The phone’s security features would delete its contents after 10 consecutive unsuccessful login attempts. The federal government therefore sought Apple’s help.

When Apple refused the FBI’s request, the government filed an ex parte application with the court. It argued that the type of order it was requesting was within the court’s authority under the All Writs Act (AWA), 28 U.S.C. § 1651, a statute dating back to 1789. The AWA empowers federal courts to issue orders to third parties if they are “necessary and appropriate” in a case within their jurisdiction.

In its application, the government cited a decision from 2014, In re Order Requiring [XXX], Inc. to Assist in the Execution of a Search Warrant Issued by the Court by Unlocking a Cellphone, No. 1:14-mj-02258, order (S.D.N.Y., Oct. 31, 2014), in which a court allegedly granted similar relief. The court in the cited case ordered the unnamed cellphone manufacturer to provide “reasonable technical assistance in unlocking the device,” but it also stated that it could “delay compliance” if it found it to be “unreasonably burdensome.” Id. at 4. The court in the present case issued a similar order directing Apple to “bypass or disable the auto-erase function” and to allow the FBI to gain access to the phone’s contents. In re iPhone, order at 2 (Feb. 16, 2016).

In a motion to vacate the order, Apple raised multiple objections, including the court’s lack of authority under the AWA to make such an expansive order. Complying with the order, Apple argued, would require it to create a means to circumvent the iPhone’s encryption that could be used on any iPhone, not just the one in the FBI’s possession. It denied the credibility of the government’s claim that it only wanted to break encryption in this one case. If Apple created a means of breaking iPhone encryption, it would be available to the government in other cases, and it could easily fall into the hands of hackers, putting every Apple customer at risk.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Criminal defense lawyer Michael J. Brown has fought for the rights of defendants facing federal and state criminal charges in west Texas courts since 1992. To schedule a confidential consultation with a knowledgeable criminal justice advocate, contact us today online or at (432) 687-5157.

More Blog Posts:

Court Rules that State May Compel Fingerprint, but Not Passcode, Access to Cell Phone, Texas Criminal Lawyer Blog, January 8, 2015

Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches, Texas Criminal Lawyer Blog, October 30, 2014

Law Enforcement Made More than 1 Million Requests for Cell Phone User Data, Often Without Warrants, in One Year, Texas Criminal Lawyer Blog, February 21, 2013

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