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United States News Title: B.S. Gpvernment argument against Apple The governmen iPhone litigation in California has been revealed to be b.s. judge shopping in the People's Republic of California enabling a b.s. campaign about terrorism. The same legal argument was pending before a judge in NY with indications of little chance of success. The judge shot down the legal argument as expected. Case 1:15-mc-01902-JO Document 29 Filed 02/29/16 Page 1 of 50 UNITED STATES DISTRICT COURT [Excerpts - footnotes omitted] The government seeks an order requiring Apple, Inc. ("Apple") to bypass the passcode security on an Apple device. It asserts that such an order will assist in the execution of a search warrant previously issued by this court, and that the All Writs Act, 28 U.S.C. § 1651(a) (the "AWA"), empowers the court to grant such relief. Docket Entry ("DE") 1 (Application). For the reasons set forth below, I conclude that under the circumstances of this case, the government has failed to establish either that the AWA permits the relief it seeks or that, even if such an order is authorized, the discretionary factors I must consider weigh in favor of granting the motion. More specifically, the established rules for interpreting a statute's text constrain me to reject the government's interpretation that the AWA empowers a court to grant any relief not outright prohibited by law. Under a more appropriate understanding of the AWA's function as a source of residual authority to issue orders that are "agreeable to the usages and principles of law," 28 U.S.C. § 1651(a), the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. [...] At 7-9: For several months after Feng's plea and the government's letter, this case progressed no further. On February 12, 2016 – apparently unprompted by any development in this case, but just as apparently, in hindsight, reacting to developments elsewhere – Apple filed a letter in response to the government's submission about the procedural viability of the Application in light of Feng's plea. Apple eschewed comment on whether the government's ongoing hunt for unindicted others, or the prospect of Feng's sentencing, sufficed to keep the controversy alive. Instead, Apple alluded to "additional requests similar to the one underlying the case before this Court" and the fact that it has "been advised that the government intends to continue to invoke the All Writs Act in this and other districts in an attempt to require Apple to assist in bypassing the security of other Apple devices in the government's possession." DE 26 (letter dated Feb. 12, 2016) at 1. Based on those similar requests and the anticipation of further motions under the AWA, Apple asserted that this matter "is not moot because it is capable of repetition, yet evading review." Id. at 2 (citing United States v. N.Y. Tel. Co., 434 U.S. 159, 190 n.6 (1977)). I recognized that while Apple's letter identified a sound legal theory, it did not supply a sufficiently particularized factual basis for applying it in this case. Moreover, it was apparent that those unreported facts might bear on a number of legal issues about which the parties had disagreed at oral argument. I therefore directed Apple to provide, among other things, specific details of the requests it had received from the government during the pendency of this action, the position Apple had taken in response, and the results of those requests. See Order dated Feb. 16, 2016. Although I did not require a response until March 1, 2016, Apple supplied the requested information the next day. DE 27 (letter dated Feb. 17, 2016). In that response, Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016. Id. at 2. In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected. Id. None of those cases has yet been finally resolved, and Apple reports that it has not to date provided the requested assistance in any of them. Id. at 2-3. In addition to the nine new cases described above, Apple also reported that as recently as February 16, 2016, shortly after my own order of the same date, the United States District Court for the Central District of California had entered an ex parte order under the AWA directing Apple Id. at 1 (citing DE 27-1 (copy of In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. ED 15-0451M) (the "California" action), Order Compelling Apple, Inc. to Assist Agents in Search (C.D. Cal. Feb. 16, 2016)). On February 22, 2016, the government confirmed that Apple's description of the recent requests could properly be filed on the public docket without jeopardizing any pending criminal investigation; in doing so, it noted the existence of yet one more case in which a court has ordered Apple to help the government bypass the passcode security of a locked device. DE 28. This matter is therefore one of a dozen pending cases in which the government and Apple disagree as to the court's authority to command Apple to assist the government in defeating the passcode security of devices Apple has manufactured. At 11-12: As set forth below, I conclude that in the circumstances of this case, the government's application does not fully satisfy the statute's threshold requirements: although the government easily satisfies the statute's first two elements, the extraordinary relief it seeks cannot be considered "agreeable to the usages and principles of law." In arguing to the contrary, the government posits a reading of the latter phrase so expansive – and in particular, in such tension with the doctrine of separation of powers – as to cast doubt on the AWA's constitutionality if adopted. Moreover, I further conclude that even if the statute does apply, all three discretionary factors weigh against issuance of the requested writ, and that the Application should therefore be denied as a matter of discretion even if it is available as a matter of law. At 14: 3. Agreeable to the Usages and Principles of Law The question whether the AWA permits the relief sought here thus reduces to whether it is "agreeable to the usages and principles of law" to compel Apple – a private party with no alleged involvement in Feng's criminal activity – to perform work for the government against its will. At 15-16: In particular, unlike the government, Apple contends that a court order that accomplishes something Congress has considered but declined to adopt – albeit without explicitly or implicitly prohibiting it – is not agreeable to the usages and principles of law. See Apple II at 4; Apple III at 4. As explained below, I agree. Before discussing that matter, however, I first briefly consider how this case would come out if, instead of rejecting the government's understanding of the AWA's gap-filling function, I adopted it. Even under that reading of the law, I believe Apple has the better argument – both because it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also because even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe. At 50: Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come. For the reasons set forth above, I conclude that it does not. The government's motion is denied. SO ORDERED. ______/s/________ = = = = = = = = = = PREVIOUS DOCUMENT: Post Comment Private Reply Ignore Thread |
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