Picture this:  A criminal defendant is indicted for three counts related to the possession of methamphetamine, and federal prosecutors obtain a warrant for the defendant’s iPhone.  But the iPhone is passcode protected, and the prosecutors can’t break the code.  During their investigation, the prosecutors learn that someone has sent a command to the target phone that will cause the iPhone’s contents to be erased if the device is connected to a network and powered on.  The prosecutors approach Apple and request that Apple unlock the iPhone so that they can execute their warrant.  Must Apple comply with this request?

This is the scenario that Magistrate Judge Orenstein recently confronted in In re Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant Issued by the Court, 15-MC-1902 (JO) (E.D.N.Y.).  Federal prosecutors had requested an order pursuant to the All Writs Act, 28 U.S.C. § 1651, directing Apple to assist in unlocking the iPhone.  In an Order dated October 9, 2015, Judge Orenstein sua sponte asked for briefing on this issue based on his belief that the authorities relied upon did not support the award of such an order.

In its brief, Apple said it would be technologically impossible for it to comply with the prosecutors’ request for approximately 90% of its devices—iPhones that were running iOS 8 or higher.  While Apple could unlock the defendant’s device because it was running iOS 7, Apple claimed that compelling it to unlock a user’s iPhone would tarnish Apple’s brand.

The prosecutors fired back at Apple, claiming that Apple routinely complied with these requests.  Apple had issued publicly available Legal Resource Guidelines, which stated that Apple could extract data from certain iPhones upon receipt of a valid search warrant.  In fact, Apple had suggested the language that was included in the proposed order that had been submitted to the Court.  The prosecutors also cited to four federal court decisions in which courts had issued orders compelling Apple to unlock iPhones.

In a supplemental brief, Apple acknowledged that it had previously complied with similar data extraction requests, but noted that it had only done so through an ex parte process into which Apple had no visibility.  Now that the Court had requested briefing on this issue, Apple claimed that the All Writs Act did not support an award of the relief that was requested.  Apple’s arguments largely hinged on its assertion that it did not control or possess the device.  Therefore, the prosecutors were essentially requesting that Apple be compelled to provide free forensic services.

So what did the Court decide?  It hasn’t yet.  After a hearing and even more briefing, the Court issued an October 30 Order in which it asked the prosecutors to explain why their request was not rendered moot given that the defendant had pleaded guilty.  The prosecutors’ letter brief argued that understanding the iPhone’s contents was necessary to further their ongoing investigation of the underlying conspiracy.  So we wait to see if this issue is ultimately disposed of on procedural grounds.

At the same time the prosecutors’ request was playing out before Magistrate Judge Orenstein, the Obama administration announced, that it was halting its year-long campaign for legislation that would compel technology companies and smartphone manufacturers to provide the government with “back door” access to their devices.  Such legislation would have required companies like Apple to modify their operating systems and devices to allow the government access to users’ encrypted data.  The administration’s retreat from pushing a legislative fix means that access battles will continue to be fought in the courts.