Apple and the Case of Government-Sanctioned Jail Breaking

1. Apple is not "far removed" from this matter

First, Apple is not "so far removed from the underlying controversy that its assistance could not be permissibly compelled." Apple designed, manufactured and sold the SUBJECT DEVICE, and wrote and owns the software that runs the phone which software is preventing the execution of the warrant. Indeed, Apple has positioned itself to be essential to gaining access to the SUBJECT DEVICE or any other Apple device, and has marketed its products on this basis. Apple designed and restricts access to the code for the auto-erase function the function that makes the data on the phone permanently inaccessible after multiple failed passcode attempts and thus effectively prevents the government from attempting to execute the search warrant without Apple's assistance. The same software Apple is uniquely able to modify also controls the delays Apple implemented between failed passcode attempts which makes the process take too long to enable the access ordered by the court. Especially but not only because iPhones will only run software cryptographically signed by Apple, and because Apple restricts access to the code of the software that creates these obstacles, there is no other party that has the ability to assist the government in preventing these features from obstructing the search ordered b y the court pursuant to the warrant.

Apple is also not made "far removed" by the fact that it is a While New York Telephone Co. involved a non-government third party. public utility, that was not the source of the holding that the All New York Telephone Co. emphasized Writs Act order was appropriate. New York Telephone Co. emphasized that "the Company's facilities were being employed to facilitate a criminal enterprise on a continuing basis," and the company's noncompliance "threatened obstruction of an investigation which would determine whether the Company's facilities were being lawfully used." New York Telephone Co., 434 U.S. at 174. By analogy, where Apple manufactured and sold a phone used by a person at the center of a terrorism investigation, where it owns and licensed the software used to "facilitate the criminal enterprise," where that very software now must be used to enable the search ordered by the warrant, compulsion of Apple is permissible under New York Telephone Co. Moreover, other courts have directed All Writs Act orders based on warrants to entities that are not public utilities. For example, neither the credit card company in Hall nor the landlord in Access to Videotapes was a public utility. See Hall, 583 F. Supp. at 722; Access to Videotapes, 2003 WL 22053105, at *3. Apple's close relationship to the iPhone and its software which are by Apple's design makes compelling assistance from Apple permissible and the only means of executing the warrant.