Monday, November 23, 2015

Gov't Uses Obscure 18th Century Law to Compel Apple to Unlock Suspected Drug Dealer's iPhone

Feds need to unlock an iPhone of a suspected methamphetamine dealer. They can’t unlock it themselves, they can’t compel the defendant to do it and there is no legal authority on point that would require Apple to assist in this case. So, now, the Government’s only hope to unlock that iPhone is to rely on a vague 1789 law, the All Writs Act, which authorizes the United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

The Apple iPhone 5s that is the subject of the government’s application was seized pursuant to a search warrant from the residence of Jun Feng.   The device is running iOS 7.  Feng has been indicted on three counts related to the possession and distribution of methamphetamine.   He eventually pleaded guilty. See United States v. Jun Feng, No. 14-CR-387.

DEA, FBI and DOJ decided that they cannot use own forensic resources to attempt to unlock the phone because that would pose a significant risk of data destruction. They also can’t compel the defendant to unlock the phone because that would raise significant Fifth Amendment issues with self-incrimination. The fruits of the compelled decryption are likely to be suppressed.

Apple does not want to help in this case because it claims that:

- this situation would be no different than “if the government sought to use the All Writs Act to force a safe manufacturer to travel around the country unlocking safes that the government wants to access, or to make a lock manufacturer pick locks for the government”

- it would damage Apple’s reputation and hurt sales if customers know that the company may one day assist the Gov’t in unlocking purchased devices

- getting involved in unlocking that iPhone would pose an undue burden, especially if the employee(s) must later testify in court

- the obscure statute from the 18th century should not apply when there are more specific modern laws where this matter is either addressed or “specifically omitted.” Namely, the Communications Assistance for Law Enforcement Act (CALEA) of 1994, which does not compel private companies to provide the type of assistance sought by the Government in this case.