DOJ and Apple File Briefs in EDNY Encryption Case

At the request of Judge James Orenstein of the U.S. District Court for the Eastern District of New York, over the course of last week, Apple filed two briefs and the government filed one regarding the feasibility of Apple's decrypting its own devices. As Francesca Procaccini wrote last week, the case concerns the government's request for an order to compel Apple to decrypt an iPhone under the All Writs Act. Judge Oreinstein was unwilling to immediately grant the order and asked that Apple clarify whether such decryption would be technologically possible and, if possible, unduly burdensome. (Under United States v. New York Telephone Co., the All Writs Act may not be used to issue orders creating an undue burden on the party in question.)

Apple's first brief argues that it would be technically impossible for the company to decrypt devices running the operating system iOS 8 or higher, iOS 8 being the operating system with which Apple began implementing encryption by default. The brief goes on to suggest that, even though the device at issue in the case is running an earlier operating system, the order would be unduly burdensome in that it would be "diverting man hours and hardware and software from Apple's normal business operations" and burden Apple engineers' by requiring them to provide testimony--both manageable demands on a small scale, but potentially unmanageable if the volume of government orders were to increase. Finally, Apple argues that such decryption would "threaten the trust between Apple and its customers," causing great economic damage to the company.

In response, the government filed a reply brief noting that Apple "has an established track record of assisting law enforcement agents by extracting data from passcode-locked iPhones pursuant to court orders issued under the All Writs Act." The brief argues that decrypting the phone would not impose an undue burden on Apple and suggests that, because Apple licenses rather than sells its software, it retains a legal obligation to assist law enforcement in matters related to the software under New York Telephone Co.

Finally, Apple filed a supplemental response, rejecting the government's licensing argument on the grounds that "Apple’s licensing agreement does not establish a connection between Apple and the private data its customers store on their devices." Apple also contests the government's characterization of its participation in past law enforcement investigations. Finally, it argues that the All Writs Act cannot apply in this case because Congress has intentionally declined to pass legislation on the matter by failing to expand CALEA, meaning that the lack of statutory authorization for DOJ's request was intended by Congress and is not simply a lacuna that may be addressed through the All Writs Act. (Judge Orenstein made this same argument in his initial ruling requesting Apple's brief on the feasibility of decryption.)

All three briefs are included below.

Apple Inc.'s Response to Court's October 9, 2015 Memorandum and Order

The Government's Reply

Apple Inc.'s Supplemental Response to Court's October 9, 2015 Order and Opinion