The last few weeks and months have been awash in media coverage of two cases before magistrate judges involving the federal government seeking to use the All Writs Act to compel Apple’s cooperation with ongoing criminal investigations. The older case, in the Eastern District of New York, involves a drug case where the phone’s owner has pleaded guilty to the charges against him. The more recent case, in the Central District of California, involves an iPhone used by Syed Farook, one of the alleged San Bernardino shooters. While the two cases involve different different phone models, operating systems, alleged crimes, and legal postures, they touch on similar questions related to the scope of the All Writs Act.
In an attempt to create a one-stop shop for our coverage and the related documents and some useful sources, we’ve compiled this readers’ guide. We will update it as the cases progress to include the latest filings and posts, so check back for more as things unfold.
All Writs Act
- Statute: 18 USC 1651
- Leading Supreme Court case: United States v. New York Telephone Co.
Eastern District of New York Case
This case, assigned to Magistrate Judge James Orenstein in the Eastern District of New York, is officially named In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by This Court. It involves a locked iPhone 5s running iOS 7 that the government is seeking Apple’s assistance in unlocking.
Our coverage on the case:
- Jennifer Granick and Riana Pfefferkorn, Update on Apple’s Compelled-Decryption Case (October 20, 2015)
- Jennifer Granick and Riana Pfefferkorn, The All Writs Act, Software Licenses, and Why Judges Should Ask More Questions (October 26, 2015)
- Jennifer Granick and Riana Pfefferkorn, A Quick Update: Apple, Privacy, and the All Writs Act of 1789 (October 30, 2015)
- Marty Lederman, [UPDATED] Magistrate Judge Orenstein’s Order in the EDNY, Denying DOJ’s All Writs Act Request… (March 1, 2016)
The briefs, orders, and opinions in the case:
- Warrant Application (October 8, 2015)
- Memorandum and Order Requesting Briefing (October 9, 2015)
- Apple’s Response (October 19, 2015)
- Government’s Reply (October 22, 2015)
- Apple’s Supplemental Response (October 23, 2015)
- Apple’s Post-Hearing Brief (October 28, 2015)
- Government’s Post-Hearing Brief (October 28, 2015)
- Government’s Letter on Plea Deal (October 29, 2015)
- Government’s Letter on Mootness (October 30, 2015)
- Apple’s Letter on Mootness (February 12, 2016)
- Apple’s Letter on Requests Received Under the All Writs Act (February 17, 2016)
- Government’s Letter on Requests Made Under the All Writs Act (February 22, 2016)
- Memorandum and Order Denying Government’s Request (February 29, 2016)
- Appeal of Magistrate Judge’s Decision and government’s motion to compel assistance submitted to the District Court (March 7, 2016)
- Apple’s letter requesting a modified briefing schedule (March 11, 2016), which the court granted in full in a minute order (March 12, 2016)
- Government’s response to Apple’s request for modified briefing (March 11, 2016)
- Apple’s letter requesting modified briefing schedule for its response to government’s motion to appeal (March 24, 2016), which the court ordered the government to respond to by March 29, 2016
- Government’s Response to Apple’s request for modified briefing schedule (March 29, 2016)
- Government’s letter stating its intent not to request modifications to the underlying All Writs Act application (April 8, 2016)
- Apple’s response to the government’s brief in support of its application for a motion to compel Apple’s assistance, with declaration (April 15, 2016)
- Amicus brief from the Federal Law Enforcement Officers Association (April 21, 2016)
- Government’s letter withdrawing application (April 22, 2016)
Central District of California Case
This case, assigned to Magistrate Judge Sheri Pym in the Central District of California, is officially named In re Matter of the Search Warrant of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203. It involves a locked iPhone 5C running iOS 9. The government is seeking to compel Apple to develop and — sign the code — of a custom operating system that disables the iPhone’s opt-in auto-erase feature, removes the delay iOS imposes for incorrect passcode guesses, and allows the FBI to submit passcodes to the phone electronically.
Our coverage on the case:
- Jennifer Granick, Who Sets the Rules of the Privacy and Security Game? (February 22, 2016)
- Julian Sanchez, Apple vs. FBI: “Just This Once”? (February 23, 2016)
- Marty Lederman, Apple’s Motion to Vacate the All Writs Act Assistance Order: Has Apple Chosen the Best “Test Case”? (February 26, 2016)
- Marty Lederman, A Friendly Critique of the Proposed Chesney/Vladeck “Middle Ground” in the Apple/FBI Disputes (March 21, 2016)
- Julian Sanchez, FBI “Discovers” It Can Access That iPhone After All (March 22, 2015)
The briefs, orders, and opinions in the case:
- Government’s All Writs Act Application, with original warrant (February 16, 2016)
- Court’s All Writs Act Order (February 16, 2016)
- Government’s Motion to Compel (February 19, 2016)
- Scheduling Order (February 19, 2016)
- Apple’s Motion to Vacate, with declarations (February 25, 2016)
- Apple’s Notice of Objections (March 1, 2016)
- Amicus Brief from Access Now and the Wickr Foundation, in support of Apple (March 1, 2016)
- Amicus Brief from the ACLU and its California affiliates, in support of Apple (March 2, 2016)
- Amicus Brief from iPhone security and applied cryptography experts, in support of Apple (March 2, 2016)
- Amicus Brief from the App Association, in support of Apple (March 2, 2016)
- Amicus Brief from the EFF and 46 Technologists, Researchers, and Cryptographers, in support of Apple (March 3, 2016)
- Amicus Brief from the Center for Democracy and Technology, in support of Apple (March 3, 2016)
- Amicus Brief from Privacy International and Human Rights Watch, in support of Apple (March 3, 2016)
- Amicus Brief from the Electronic Privacy Information Center and eight consumer privacy organizations, in support of Apple (March 3, 2016)
- Amicus Brief from the Media Institute, in support of Apple (March 3, 2016)
- Amicus Brief from the Software Alliance, the Consumer Technology Association, the Information Technology Industry Council, and TechNet, in support of Apple (March 3, 2016)
- Amicus Brief from Airbnb, Atlassian, Automattic, CloudFlare, eBay, GitHub, Kickstarter, LinkedIn, Mapbox, Medium, Meetup, Reddit, Square, Squarespace, Twilio, Twitter and Wickr, in support of Apple (March 3, 2016)
- Amicus Brief from Amazon.com, Box, Cisco Systems, Dropbox, Evernote, Facebook, Google, Microsoft, Mozilla, Nest, Pinterest, Slack, Snapchat, WhatsApp and Yahoo, in support of Apple (March 3, 2016)
- Amicus Brief from AT&T, in support of Apple (March 3, 2016)
- Amicus Brief from AVG Technologies, Data Foundry, Golden Frog, the Computer & Communications Industry Association (CCIA), the Internet Association, and the Internet Infrastructure Coalition, in support of Apple (March 3, 2016)
- Amicus Brief from Lavabit, in support of Apple (March 3, 2016)
- Amicus Brief from 32 law professors, in support of Apple (March 3, 2016)
- Amicus Brief from Richard F. Taub (March 3, 2016)
- Amicus Brief from the Federal Law Enforcement Officers Association, Association of Prosecuting Attorneys, and National Sheriffs’ Association, in support of the government (March 3, 2016)
- Amicus Brief from the California State Sheriffs Association, California Police Chiefs’ Association and the California Peace Officers’ Association, in support of the government (March 3, 2016)
- Amicus Brief from families of victims in the San Bernardino shooting, in support of the government (March 3, 2016)
- Amicus Brief from the San Bernardino County District Attorney on behalf of the People of California, in support of the government (March 3, 2016)
- Government’s Response, with declarations but without exhibits (March 10, 2016)
- Amicus Brief from Intel, in support of Apple (March 11, 2016)
- Apple’s Reply, with declarations but without exhibits (March 15, 2016)
- Minutes of In-Chambers Order regarding March 22, 2016 hearing procedures (March 17, 2016), updated (March 21, 2016)
- Government’s Motion to Vacate Hearing scheduled for March 22, 2016 (March 21, 2016)
- Order vacating the hearing scheduled for March 22, 2016 and ordering the Government to file a status report by April 5, 2016 (March 21, 2016)
- Government’s Status Report and request to vacate the order compelling Apple’s assistance (March 28, 2016)
- Order vacating February 16, 2016 order (March 29, 2016)
Letters sent to the court, but not added to the docket:
- Letter to the Court from David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, in support of Apple (March 2, 2016)
- Letter to the Court from Beats, Rhymes & Relief, Center for Media Justice, The Gathering for Justice, Justice League NYC, Opal Tometi, and Shaun King, in support of Apple (March 3, 2016)
- Letter to the Court from Salihin Kondoker, husband of a victim in the San Bernardino shooting, in support of Apple (not dated)