A tale of two phones: a discussion of law enforcement's use of the All Writs Act to force Apple to open private iPhones.

• Author: Espino, Meredith Mays

1. INTRODUCTION 98 II. BACKGROUND 98 A. SAN BERNARDINO SHOOTER SYED FAROOK'S IPHONE 5 98 B. METHAMPHETAMINE DEALER JUN FENG'S IPHONE 5 101 III. APPLE OPPOSED THE US DOJ's USE OF THE ALL WRITS ACT 102 A. GOVERNMENT ARGUED THAT THE ALL WRITS ACT PERMITS ORDERING APPLE TO ASSIST IN OPENING THE PHONES 102 B. APPLE'S OBJECTION IN THE CASE OF FENG'S PHONE THAT THE REQUEST IS OVERLY BURDENSOME FAILS 103 C. THE ORDER FOR APPLE TO ASSIST IN UNLOCKING FAROOK'S PHONE WAS AN UNLAWFUL OVERREACH BY LAW ENFORCEMENT THROUGH THE COURT 105 D. REQUIRING AN ELECTRONIC COMMUNICATIONS COMPANY TO DISABLE SECURITY FEATURES IS DANGEROUS 107 IV. CONCLUSION 108 I. INTRODUCTION

   While the discussion below is a tale of two mobile phones, it is a parable of sorts. Though the end has come to the stories of the two phones in question, the issue surrounding them has not. This article is not just about two iPhones; indeed, it concerns the lengths to which law enforcement will go in pursuit of public safety and security, and raises fundamental questions as to the kind of security we are now concerned with. Specifically, the issue is whether the All Writs Act, a vague statute signed into law in 1789, should be used as a means for law enforcement to penetrate areas where they would have no access otherwise.

   On the one hand, law enforcement needs a means to compel access where there is no other procedure to obtain it. As used here, the All Writs Act is a stopgap measure that does just that. It allows the courts to enforce a search warrant where the assistance of a third-party is required.

   On the other, there must be a boundary where law enforcement may not cross. The All Writs Act is vague on purpose but it was not meant to be a skeleton key to every door that they would otherwise not be able to open, especially where Congress has specifically limited access to a door. It was not meant to circumvent statutory and Constitutional safeguards.

2. BACKGROUND

   1. San Bernardino Shooter Syed Farook's iPhone 5C

      On December 2, 2015, Syed Rizwan Farook and Tashfeen Malik, a married couple radicalized and inspired by ISIL, entered the Inland Regional Center in San Bernardino, California and shot into a party for the San Bernardino County Department of Public Health being held within. (1) Farook was a health inspector with the Department. (2) Fourteen people were killed and twenty-two were seriously injured. (3) The couple tied but were killed in a shootout with police four hours later. (4)

      As part of the investigation, the Federal Bureau of Investigation (FBI) recovered an iPhone 5C, owned by San Bernardino County and issued to Farook. (5) Shortly after the FBI took possession of the phone, a San Bernardino county employee reset the password to the iCloud account associated with Farook's phone, ostensibly to access the iCloud account and gain access to the information. (6) However, Farook's phone had not been backed up into the iCloud in the six weeks before the shooting. (7)

      By changing the password to the iCloud account, the passwords for the iCloud account and phone no longer matched. (8) Thus, the phone could neither be unlocked nor synced to iCloud. (9) Apple offered the FBI four options for getting data from the phone. (10) However, because the password to the iCloud had been changed, one of the options was no longer viable. (11) The FBI was uninterested in any option that did not result in access to the phone. (12)

      Desperate to get into the phone, the federal Department of Justice (DOJ) filed an application under the All Writs Act, 28 USC [section]1651, requesting an order directing Apple to assist the FBI in cracking the phone. (13) On the same day, Magistrate Judge Pym issued the order requested but gave Apple the opportunity to contest the order if Apple found it to be unreasonably burdensome. (14) Apple contested the order. (15)

      Before the matter was heard, the DOJ dropped its request. (16) A third-party was paid up to $1.3 million for a tool to hack into the phone and retrieve the data. (17) The FBI has refused to share with Apple the vulnerability that led to the FBI accessing Farook's phone, claiming that it does not know how the tool works but that it only works on the iPhone 5C. (18)

      Farook's phone ran on the iOS 8 operating system. (19) The iOS 8 was developed so that no one--not even Apple--could bypass the security features of the phone and obtain data without entering the passcode because the passcode was entangled with the encryption keys. (20) Apple did not have the technological capability to unlock the phone or to access the data within. (21) To do so would require the development of a new operating system. (22)

   2. Methamphetamine Dealer Jun Feng's iPhone 5

      In mid-2014, Jun Feng was arrested and charged based on his participation in a methamphetamine distribution enterprise. (23) DEA agents searched his home and seized an iPhone 5s. (24) On October 8, 2015, DOJ applied for an order under the All Writs Act to compel Apple to provide assistance accessing Feng's phone. (25) There was a data wipe order pending on the phone such that, if the phone were turned on and it connected to a network, the data on the phone would be destroyed. (26) Magistrate Judge Orenstein ordered briefing on the technical feasibility and burden to Apple for providing assistance. (27) Apple filed a response objecting to being conscripted into the service of law enforcement to open Feng's phone. (28)

      Feng's phone ran on iOS 7, an operating system older than what was running Farook's phone. Apple admitted that it had the technical capabilities to pull certain data from the passcode-locked phone. (29) The basis for refusing to open the phone lies in the burden of man-hours required to open not just this phone, but other phones as requested by law enforcement. (30)

      Before the issue could be heard, Feng provided the passcode to the phone and...