The All Writs Act and the San Bernardino iPhone Case

B. The All Writs Act Permits This Order

The All Writs Act provides in relevant part that "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). As the Supreme Court explained, "[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute." Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985). The All Writs Act permits a court, in its "sound judgment," to issue orders necessary "to achieve the rational ends of law" and "the ends of justice entrusted to it." United States v. New York Telephone Co., 434 U.S. 159, 172- 3 (1977) (citations and internal quotation marks omitted). Courts must apply the All Writs Act "flexibly in conformity with these principles." Id. at 173; accord United States v. Catoggio, 698 F.3d 64, 67 (2d Cir.2012) ("[C]ourts have significant flexibility in exercising their authority under the Act.") (citation omitted).

Pursuant to the All Writs Act, the Court has the power, "in aid of a valid warrant, to order a third party to provide nonburdensome technical assistance to law enforcement officers." Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979) (citing United States v. New York. Tel. Co., 434 U.S. 159 (1977)); see also In re U.S. for an Order Directing a Provider of Communication Services to Provide Technical Assistance to Agents of the U.S. Drug Enforcement Administration, 2015 WL 5233551 (D.P.R. August 27, 2015) (granting government's request pursuant to the All Writs Act for services to provide information, facilities, and technical assistance to facilitate the consensual recording of all electronic communication to and from a particular mobile phone); United States v. Fricosu, 841 F.Supp. 2d 1232, 1238 (D. Colo. 2012) (order issued under All Writs Act requiring defendant to provide password to encrypted computer seized pursuant to a search warrant). In New York Telephone Co., the Supreme Court held that courts have authority under the All Writs Act to issue supplemental orders to third parties to facilitate the execution of search warrants. 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." Id. at 174. In particular, the Court upheld an order directing a phone company to assist in executing a pen register search warrant issued under Rule 41. See id. at 171-76; see also Application of U.S. for an Order Authorizing an In-Progress Trace of Wire Commc'ns over Tel. Facilities (Mountain Bell), 616 F.2d 1122, 1132-33 (9th Cir. 1980) (affirming district court's order compelling Mountain Bell to trace telephone calls on grounds that "the obligations imposed . . . were reasonable ones." (citing New York Tel. Co., 434 U.S. at 172)).

New York Telephone Co. also held that "Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized by a finding of probable cause." 434 U.S. at 170. The Court relied upon the authority of a search warrant pursuant to Rule 41 to predicate an All Writs Act order commanding a utility to implement a pen register and trap and trace device before Congress had passed a law that specifically authorized pen registers by court order. Under New York Telephone Co. and Mountain Bell, the All Writs Act provides authority for this Court to order Apple to assist with steps necessary to perform the search ordered by the warrant for the SUBJECT DEVICE.

Further, based on the authority given to the courts under the All Writs Act, courts have issued orders, similar to the one the government is seeking here, that require a manufacturer to assist in accessing a cell phone's files so that a warrant may be executed as originally contemplated. See, e.g., In re Order Requiring [XXX], Inc. to Assist in the Execution of a Search Warrant Issued by This Court by Unlocking a Cellphone, 2014 WL 5510865, at *2 (S.D.N.Y. Oct. 31, 2014); see also United States v. Navarro, No. 13-CR-5525, ECF No. 39 (W.D. Wa. Nov. 13, 2013). Courts have also issued All Writs Act orders in furtherance of warrants in a wide variety of contexts, including: ordering a defendant to produce a copy of the unencrypted contents of a computer seized pursuant to a federal search warrant (Fricosu, 841 F.Supp. 2d at 1238); ordering a phone company to assist with a trap and trace device (Mountain Bell, 616 F.2d 1122, 1129 (9th Cir. 1980)); ordering a credit card company to produce customer records (United States v. Hall, 583 F. Supp. 717, 722 (E.D. Va. 1984)); ordering a landlord to provide access to security camera videotapes (In re Application of United States for an Order Directing X to Provide Access to Videotapes, No. 03-89, 2003 WL 22053105, at *3 (D. Md. Aug. 22, 2003) (unpublished order)); and ordering a phone company to assist with consensual monitoring of a customer's calls (In re U.S., No. 15-1242 (M), 2015 WL 5233551, at *4-5 (D.P.R. Aug. 27, 2015) (unpublished order)). Because the orders are typically, as here, sought in the midst of a criminal investigation, they are usually obtained by way of ex parte application and not noticed motion. See, e.g., New York Telephone Co., 434 U.S. at 162; In re U.S., 2015 WL 5233551, at *1; In re [XXX], 2014 WL 5510865, at *1; __Application of U.__S., 616 F.2d at 1122; In re Application of United States, 2003 WL 22053105, at *1. The government is not aware of any case in which the government obtained a Rule 41 search warrant but was denied an All Writs Act Order when necessary to facilitate the execution of the warrant.[5]

In New York Telephone Co., the Supreme Court considered three factors in concluding that the issuance of the All Writs Act order to the phone company was appropriate. First, it found that the phone company was not "so far removed from the underlying controversy that its assistance could not be permissibly compelled." Id. at 174. Second, it concluded that the order did not place an undue burden on the phone company. See id. at 175. Third, it determined that the assistance of the company was necessary to achieve the purpose of the warrant. See id. Each of these factors supports issuance of the order directed to Apple in this case.