The government is trying to use the All Writs Act of 1789 to compel Apple to bypass the lock screen of an iPhone that was seized as evidence in a criminal investigation, and the magistrate judge in the case has asked Apple to brief the court on whether the government's request is technologically feasible, and if so, whether it's burdensome for Apple to comply. Apple responded on Monday, asking the court to deny the government's request.
Apple pointed out that "as of October 5, 2015, 90% of Apple's devices are using iOS 8 or higher." IOS 8 encrypts the majority of data on an iPhone, making it impossible for Apple to extract that information without the user's passcode. However, the device at issue in this case runs iOS 7. Apple said that when it comes to these devices, which represent less than 10 percent of all Apple devices in use, "Apple has the technical ability to extract certain categories of unencrypted data from a passcode locked iOS device."
Apple told the court:
Whether the extraction can be performed successfully depends on the device itself, and whether it is in good working order. As a general matter, however, certain user-generated active files on an iOS device that are contained in Apple's native apps can be extracted. Apple cannot, however, extract email, calendar entries, or any third-party app data.
The company admitted that the extraction of data from a pre-iOS 8 device on its own "would not likely place a substantial financial or resource burden on Apple," but argued that each extraction "diverts man hours and hardware and software from Apple's normal business operations," on top of potentially requiring Apple engineers to testify at trial in the future.
More importantly, Apple claimed extractions under the All Writs Act, "absent clear legal authority to do so, could threaten the trust between Apple and its customers and substantially tarnish the Apple brand," since "public sensitivity to issues regarding digital privacy and security is at an unprecedented level."
Although the question will largely be moot in the future, as pre-iOS 8 devices vanish from circulation, it seems Apple very much does not want to have to help the government with these kinds of requests—at least partly because they think it makes the company look bad.
Apple avoided discussion of whether it was legal for the government to use the All Writs Act to require a manufacturer to unlock one of its own devices, on the basis that the magistrate judge had asked the company to respond only to the questions of feasibility and burden—considerations that can potentially bar the use of the All Writs Act in a specific instance.
Magistrate Judge James Orenstein replied to Apple on Wednesday, inviting its lawyers to opine on "whether the All Writs Act empowers the court to compel Apple to provide the technical assistance the government seeks."
Orenstein clarified that he had never intended for Apple to limit its response, but only to "focus its attention" to the technical aspects of the case.
On Monday, the American Civil Liberties Union asked for permission to file an amicus brief in the case. The ACLU's request has been denied. The brief, which has been rejected by the judge, argued that the government's request is "extraordinary and unjustified," as well as unconstitutional under the Fifth Amendment.
The use of the All Writs Act in the way is certainly unusual and has turned this otherwise routine matter into a case that the ACLU, EFF, and Stanford Law School Center for Internet and Society are all paying attention to. According to them, this case now "implicates fundamental liberty and property interests, and thus raises novel and grave constitutional questions regarding the limits on the assistance the government can compel from private actors."