A Tale of Two Phones: A Discussion of Law Enforcement's Use of the All Writs Act to Force Apple to Open Private iPhones

By Espino, Meredith Mays | Rutgers Computer & Technology Law Journal, Spring 2017 | Go to article overview

A Tale of Two Phones: A Discussion of Law Enforcement's Use of the All Writs Act to Force Apple to Open Private iPhones


Espino, Meredith Mays, Rutgers Computer & Technology Law Journal


I. 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.

II. BACKGROUND

A. 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. …

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