Writing Code for Justice: Apple's Burden or Responsibility?

2. The order does not place an unreasonable burden on Apple

Second, the order is not likely to place any unreasonable burden on Apple. Where, as here, compliance with the order would not require inordinate effort, and reasonable reimbursement for that effort is available, no unreasonable burden can be found. New York Telephone, 434 U.S. at 175 (holding that All Writs Act order was not burdensome because it required minimal effort by the company, provided for reimbursement for the company's efforts, and did not disrupt its business operations); Mountain Bell, 616 F.2d at 1132 (rejecting telephone company's argument that unreasonable burden would be imposed because of a drain on resources and possibility of system malfunctions because the "Order was extremely narrow in scope, restricting the operation to [electronic switching system] facilities, excluding the use of manual tracing, prohibiting any tracing technique which required active monitoring by company personnel, and requiring that operations be conducted 'with a minimum of interference to the telephone service'").

While the order in this case requires Apple to provide modified software, modifying an operating system - writing software - code is not an unreasonable burden for a company that writes software code as part of its regular business. In fact, providers of electronic communications services and remote computing services are sometimes required to write code in order to gather information in response to subpoenas or other process. In addition, the order is tailored for this particular phone, and because it involves preparing a single SIF, it presents no danger of system malfunctions or disrupting business operations. As noted above, Apple designs and implements all of the features discussed, writes and cryptographically signs the iOS, and routinely patches security or functionality issues in its operating system and releases new versions of its operating system to address issues. By comparison, writing a program that turns off non-encryption features that Apple was responsible for writing to begin with would not be unduly burdensome.[6]

However, to the extent that Apple believes that compliance with the order would be unreasonably burdensome, it can make an application to the Court for relief prior to being compelled to provide the assistance. See In re XXX, 2014 WL 5510865, at *2 (including in the issued All Writs Act Order a provision that states that "to the extent [the manufacturer] believes that compliance with this Order would be unreasonably burdensome, it may delay compliance provided it makes an application to the Court for relief within five business days of receipt of the Order."). The proposed order in this case includes a similar directive.

[6] It is worth noting as well that the user of the phone is now dead, the user was made aware of his lack of privacy in the work phone while alive, and the owner of the phone consents to both the search of the phone and to Apple's assistance in this matter.