Apple's Alleged Obstruction of Critical Evidence in the San Bernardino Shooting Case

3. Apple's assistance is necessary to effectuate the warrant

Third, Apple's assistance is necessary to effectuate the warrant. In New York Telephone Co., the Court held that the order met that standard because "[t]he provision of a leased line by the Company was essential to the fulfillment of the purpose - to learn - for the identities of those connected with the gambling operation which the pen register order had been issued." 434 U.S. at 175. Here, the proposed All Writs Act order in this matter also meets this standard, as it is essential to ensuring that the government is able to perform the search ordered by the warrant.

In this case, the ability to perform the search ordered by the warrant on the SUBJECT DEVICE is of particular importance. The user of the phone, Farook, is believed to have caused the mass murder of a large number of his coworkers and the shooting of many others, and to have built bombs and hoarded weapons for this purpose. The government has been able to obtain several iCloud backups for the SUBJECT DEVICE, and executed a warrant to obtain all saved iCloud data associated with the SUBJECT DEVICE. Evidence in the iCloud account indicates that Farook was in communication with victims who were later killed during the shootings perpetrated by Farook on December 2, 2015, and toll records show that Farook communicated with Malik using the SUBJECT DEVICE. Importantly, however, the most recent backup of the iCloud data obtained by the government was dated October 19, 2015, approximately one-and-a-half months before the shooting. This indicates to the FBI that Farook may have disabled the automatic iCoud backup function to hide evidence, and demonstrates that there may be relevant, critical communications and data around the time of the shooting that has thus far not been accessed, may reside solely on the SUBJECT DEVICE, and cannot be accessed by any other means known to either the government or Apple.

As noted above, assistance under the All Writs Act has been compelled to provide decrypted contents of devices seized pursuant to a search warrant. In Fricosu, a defendant's computer whose contents were encrypted was seized, and defendant was ordered pursuant to the All Writs Act to assist the government in producing a copy of the unencrypted contents of the computer. 841 F.Supp. 2d at 1237 ("There is little question here but that the government knows of the existence and location of the computer's files. The fact that it does not know the specific content of any specific documents is not a barrier to production."). Here, the type of assistance does not even require Apple to assist in producing the unencrypted contents, the assistance is rather to facilitate the FBI's attempts to test passcodes.