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

The analogy is simple: imagine an unpickable and unbreakable lock. A safe-deposit box, or a house with no physical way in other than a unique passcode known only to the owner. Absolute security. This was generally the ideal behind Apple, Inc.’s most recent stride in mobile security, which dramatically widened the breadth of data receiving full-disk encryption by default on iPhones with the introduction of iOS 8 in 2014. The result for law enforcement has been hundreds of device search warrants unable to be executed. The heated public debate that has followed, which has largely focused on the nefarious potential of the uncompromising privacy this newly utilized encryption provides, has intensified amidst continuing efforts by government agents to obtain aid from the federal judiciary by means of orders under the All Writs Act. Although Apple had regularly complied with such orders directing the company to assist government agents in accessing locked iPhones since as early as 2008, Apple changed its position in October 2015 and will no longer acquiesce. This Note provides a detailed discussion of the underlying legal implications surrounding the so-called public standoff between Apple and the FBI, with particular attention to the propriety of the decryption assistance orders sought by the government under the All Writs Act. It further provides a detailed discussion of In re Order Requiring Apple, Inc. Assist in Execution of Search Warrant, an ongoing matter in the U.S. District Court for the Eastern District of New York, where Apple mounted its first opposition to a decryption assistance order under the All Writs Act. It further argues that the federal courts are authorized to compel third party assistance under the statute in certain situations, however, the statutes authority will eventually become obsolete as advancing technology will soon render such orders overly burdensome. It finally offers an expansion of the Communication Assistance to Law Enforcement Act (“CALEA”) as one potential solution to the threat that impenetrable device encryption poses to the functioning of the American criminal justice system.