A Second Bite at the Apple: Federal Courts’ Authority to Compel Technical Assistance to Government Agents in Accessing Encrypted Smartphone Data Under the All Writs Act

Abstract

On February 29, 2016, in In re Order Requiring Apple, Inc. Assist in Execution of Search Warrant (“In re Apple, Inc.”) the U.S. District Court for the Eastern District of New York held that the All Writs Act did not provide the legal authority to require Apple Inc. to bypass the encrypted lock-screen passcode of an iPhone for the federal government in order to execute a search warrant. Accordingly, the decision, which was the first of its kind, stripped the government of an investigative tool upon which it had routinely relied since as early as 2008. In In re Apple, Inc., after years of acquiescence to such orders, Apple mounted its first challenge to the propriety of the All Writs Act and courts’ authority to compel the company to bypass its own encryption for the government. This position followed from Apple’s most recent efforts to provide tighter mobile security for its customers with the rollout of iOS 8 in October 2014, which offered more extensive full-disk encryption by default—so extensive, Apple claimed, that its previous assistance to the government is no longer technologically feasible. As a result of the newly enhanced encryption law enforcement officials across the country have encountered hundreds of lawfully searchable phones with no means of executing searches. This Note provides a discussion of the underlying legal implications surrounding the heated public debate that has emerged in the wake of In re Apple, Inc. and other similar cases as well as the practical challenges enhanced data encryption creates for law enforcement officials. Particularly, it focuses on the propriety of decryption assistance orders that have been issued under the All Writs Act. It argues that the decision in In re Apple, Inc. was incorrect, and that the All Writs Act does in fact confer authority to federal courts to compel third-party assistance in certain situations. It concludes by offering an expansion of the Communication Assistance to Law Enforcement Act as one potential solution to the threat that impenetrable device encryption poses to the functioning of the American criminal justice system.