Case 1:15-mc-01902-JO Document 26 Filed 02/12/16 Page 1 of 2 PageID #: 568

1900 M Street, NW, Ste. 250, Washington, D.C. 20036

[email protected]

Marc J. Zwillinger
(202) 706-5202 (phone)
(202) 706-5298 (fax)
February 12, 2016
VIA ELECTRONIC FILING
The Honorable James Orenstein
United States Magistrate Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201
Re:

In re Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant

Issued by the Court, No. 15-MC-1902

Dear Judge Orenstein:

We write regarding the governments October 30, 2015 letter to the Court addressing whether
the governments application for an All Writs Act Order to Apple was rendered moot by the guilty
plea of the defendant in the criminal case for which the evidence was sought. Apple too believes that
this matter is not moot, and that a live case or controversy remains before this court for decision.
The government sought in its application an All Writs Act Order requiring Apple to assist law
enforcement in its investigative efforts by bypassing the security of an Apple device belonging to a
criminal defendant and in the governments possession. After the parties fully briefed and argued
whether the governments application had a proper basis in law, the criminal defendant pled guilty to
narcotics conspiracy. The Court subsequently directed the government to explain why its application
was not moot. In its response, the government took the position that its application was not moot
because the government still sought evidence from the device as part of a continuing investigation,
and because the criminal defendant had yet to be sentenced or judgment entered. See ECF No. 25.
Apple agrees that this matter is not moot. Apple takes no position on whether and to what
extent information from the Apple device in the governments possession is relevant to any ongoing
investigation, or necessary for the criminal defendants sentencing. But Apple has received additional
requests similar to the one underlying the case before this Court. Apple has also been advised that
the government intends to continue to invoke the All Writs Act in this and other districts in an attempt
to require Apple to assist in bypassing the security of other Apple devices in the governments
possession. To that end, in addition to the potential reasons this matter is not moot that the

Case 1:15-mc-01902-JO Document 26 Filed 02/12/16 Page 2 of 2 PageID #: 569

government identifies, this matter also is not moot because it is capable of repetition, yet evading
review. See, e.g., United States v. New York Tel. Co., 434 U.S. 159, 190 n.6 (1977) (Although the
pen register surveillance had been completed by the time the Court of Appeals issued its decision on
July 13, 1976, this fact does not render the case moot, because the controversy here is one capable
of repetition, yet evading review.)
Resolving this matter in this Court benefits efficiency and judicial economy. The question of
whether the All Writs Act can properly compel a third party like Apple to assist law enforcement in
its investigative efforts by bypassing the security mechanisms on its device has been fully briefed and
argued. The Court is thus already in a position to render a decision on that question. Doing so would
be more efficient than starting the debate anew when the government attempts to use the same
methods and make the same arguments in another court, particularly where both parties agree that
this matter is not moot.
Sincerely,
/s/ Marc J. Zwillinger
Marc J. Zwillinger
cc:

All Counsel of Record (via ECF)

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U.S. District Court

Eastern District of New York (Brooklyn)
CIVIL DOCKET FOR CASE #: 1:15-mc-01902-JO

Order requiring Apple, Inc. to assist in the execution of a search warrant

issued by the court et al
Assigned to: Magistrate Judge James Orenstein

Date Filed: 10/08/2015

In Re
Order requiring Apple, Inc. to assist in the
execution of a search warrant issued by the
court
Movant
United States of America

represented by Lauren Howard Elbert

United States Attorney's Office, EDNY
271 Cadman Plz E
Brooklyn, NY 11201
718-254-7577
Fax: 718-254-6076
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Ameet B. Kabrawala
United States Attorney's Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
718-254-6001
Fax: 718-254-6076
Email: [email protected]
ATTORNEY TO BE NOTICED
Saritha Komatireddy
US Attorney's Office - EDNY
271 Cadman Plaza East
Brooklyn, NY 11201
718-254-6054
Fax: 718-254-6076
Email: [email protected]
ATTORNEY TO BE NOTICED

Interested Party
Apple Inc.

represented by Marc J. Zwillinger

ZwillGen PLLC
1900 M Street Nw
Suite 250
Washington, DC 20036
202-296-3585
Fax: 202-706-5298
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jeffrey G. Landis
ZwillGen PLLC
1900 M Street Nw
Suite 250
Washington, DC 20036
202-296-3585

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Fax: 202-706-5298
Email: [email protected]
ATTORNEY TO BE NOTICED
Kenneth M. Dreifach
ZwillGen
415 Madison Avenue
New York, NY 10017
347-210-1798
Fax: 347-210-1798
Email: [email protected]
ATTORNEY TO BE NOTICED
V.
Amicus
American Civil Liberties Union
TERMINATED: 10/20/2015

represented by Esha Bhandari

American Civil Liberties Union Fdn.
125 Broad St, Floor 18
New York, NY 10004
212-284-7369
Fax: 212-284-7369
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

10/08/2015

1 MOTION to Compel by United States of America. (Attachments: # 1 Proposed Order) (Gillespie, Saudia)
(Entered: 10/09/2015)

10/09/2015

2 MEMORANDUM AND ORDER: I defer ruling on the application and respectfullydirect Apple to submit its
views in writing, no later than October 15, 2015, as to whether the assistance the government seeks is
technically feasible and, if so, whether compliance with the proposed order would be unduly burdensome. If
either the government or Apple wishes to present oral argument on the matter, I will hear such argument on
October 22, 2015, at 12:00 noon. Ordered by Magistrate Judge James Orenstein on 10/9/2015. See
attached document. (Gillespie, Saudia) (Entered: 10/09/2015)

10/09/2015

3 MEMORANDUM AND ORDER: On October 8, 2015, the government submitted under seal an application
for an order pursuant to the All Writs Act, 28 U.S.C. 1651, directing Apple, Inc. to assist in the execution of
a federal search warrant by disabling the security of an Apple device that the government has lawfully
seized pursuant to a warrant issued by this court. I respectfully direct the Clerk to maintain that document
under seal on the public docket of this matter. I further respectfully direct the Clerk to file on the public
docket of the same matter my Memorandum and Order dated October 8, 2015, which ruled on the
government's application without referring to any specific information that would compromise a continuing
investigation.. Ordered by Magistrate Judge James Orenstein on 10/9/2015. (Gillespie, Saudia) (Entered:
10/09/2015)

10/13/2015

4 Letter Submitting Joint Request for Extension of Time by United States of America (Elbert, Lauren)
Modified on 10/14/2015 (Guy, Alicia). (Entered: 10/13/2015)

10/14/2015

ORDER granting 4 Motion for Extension of Time to File --- The application is GRANTED; Apple, Inc. may
submit its views in writing by October 19, 2015. Ordered by Magistrate Judge James Orenstein on
10/14/2015. (Guy, Alicia) (Entered: 10/14/2015)

10/19/2015

5 NOTICE of Appearance by Kenneth M. Dreifach on behalf of Apple Inc. (aty to be noticed) (Dreifach,
Kenneth) (Entered: 10/19/2015)

10/19/2015

6 MOTION for Leave to Appear Pro Hac Vice [Jeffrey Landis] Filing fee $ 150, receipt number 0207-8105165.
by Apple Inc.. (Attachments: # 1 Affidavit of Jeffrey Landis in Support of Motion to Admit Counsel Pro Hac
Vice, # 2 Appendix [Certificate of Good Standing Forthcoming], # 3 Proposed Order) (Dreifach, Kenneth)
(Entered: 10/19/2015)

10/19/2015

7 MOTION for Leave to Appear Pro Hac Vice [Marc Zwillinger] Filing fee $ 150, receipt number
0207-8105376. by Apple Inc.. (Attachments: # 1 Affidavit of Marc Zwillinger in Support of Motion to Admit
Counsel Pro Hac Vice, # 2 Appendix [Certificate of Good Standing Forthcoming], # 3 Proposed Order)

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(Dreifach, Kenneth) (Entered: 10/19/2015)

10/19/2015

8 ORDER granting 6 Motion for Leave to Appear Pro Hac Vice -- Attorney Jeffrey G. Landis, Esq. is permitted
to argue or try this case in whole or in part as counsel or advocate. By October 26, 2015, Mr. Landis shall
submit a certificate of good standing for each state in which he is admitted. By October 26, 2015, Mr. Landis
shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Landis
shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr.
Landis shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by
Magistrate Judge James Orenstein on 10/19/2015. (Howley, Thomas) (Entered: 10/19/2015)

10/19/2015

9 ORDER granting 7 Motion for Leave to Appear Pro Hac Vice -- Attorney Marc J. Zwillinger, Esq. is permitted
to argue or try this case in whole or in part as counsel or advocate. By October 26, 2015, Mr. Zwillinger shall
submit a certificate of good standing for each state in which he is admitted. By October 26, 2015, Mr.
Zwillinger shall register for ECF. Registration is available online at the EDNY's homepage. Once registered,
Mr. Zwillinger shall file a notice of appearance and ensure that he receives electronic notification of activity
in this case. Mr. Zwillinger shall also ensure that the $150 admission fee be submitted to the Clerk's Office.
Ordered by Magistrate Judge James Orenstein on 10/19/2015. (Howley, Thomas) (Entered: 10/19/2015)

10/19/2015 10 MOTION for Leave to File Brief of Amici Curiae by American Civil Liberties Union. (Attachments: # 1
Memorandum in Support Brief of Amici Curiae American Civil Liberties Union et al.) (Bhandari, Esha)
(Entered: 10/19/2015)
10/19/2015 11 NOTICE by Apple Inc. RESPONSE TO COURTS OCTOBER 9, 2015 MEMORANDUM AND ORDER
(Dreifach, Kenneth) (Entered: 10/19/2015)
10/20/2015

ORDER denying 10 Motion for Leave to File -- I am grateful to the proposed amici for their proffered
assistance, but I conclude that it is unnecessary. Although the government filed the pending motion for relief
under the All Writs Act ex parte, the entity it seeks to have the court compel has been afforded an
opportunity to vindicate its interests by submitting a brief. While the proposed amici, among many others,
may have a fresh perspective on a broader policy debate surrounding the instant that the briefs I have
already solicited may not fully address, the sole legal issue before the court is a narrow one that directly
affects only the government and Apple, Inc. and that they are fully capable of exploring thoroughly in their
submissions. I therefore exercise my discretion to deny the motion. Cf. United States v. Yaroshenko, 86 F.
Supp. 3d 289, 291 (S.D.N.Y. 2015). Ordered by Magistrate Judge James Orenstein on 10/20/2015.
(Orenstein, James) (Entered: 10/20/2015)

10/20/2015

ORDER re 11 Notice(Other) filed by Apple Inc.: In inviting Apple, Inc. ("Apple") to submit its views on the
feasibility and burdensomeness of the government's request, I did not intend to limit its submission to those
matters, but rather to focus its attention on particular factual questions. I therefore respectfully invite Apple to
supplement its submission by addressing the legal question before the court; namely, whether the All Writs
Act empowers the court to compel Apple to provide the technical assistance the government seeks. If Apple
can do so in advance of the hearing on October 22, 2015 (at which I would benefit from Apple's participation
and availability to answer questions, should they arise, even if Apple does not affirmatively wish to present
an oral argument), I request that it do so; otherwise, I respectfully direct the government and Apple to submit
a proposed revised schedule. Ordered by Magistrate Judge James Orenstein on 10/20/2015. (Orenstein,
James) (Entered: 10/20/2015)

10/20/2015 12 NOTICE of Appearance by Saritha Komatireddy on behalf of United States of America (aty to be noticed)
(Komatireddy, Saritha) (Entered: 10/20/2015)
10/21/2015 13 Letter Regarding Schedule by United States of America (Elbert, Lauren) (Entered: 10/21/2015)
10/21/2015

ORDER re 13 Letter filed by United States of America -- The proposed schedule, docket entry 13 , is so
ordered. The hearing previously scheduled for October 22, 2015 is rescheduled for October 26, 2015 at
11:30 a.m. Apple may submit a supplemental response by October 23, 2015. Ordered by Magistrate Judge
James Orenstein on 10/21/2015. (Howley, Thomas) (Entered: 10/21/2015)

10/22/2015 14 NOTICE of Appearance by Ameet B. Kabrawala on behalf of United States of America (aty to be noticed)
(Kabrawala, Ameet) (Entered: 10/22/2015)
10/22/2015 15 REPLY in Support of the Government's Application for an All Writs Act Order and in Opposition to Apple
Inc.'s Response filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C,
# 4 Exhibit D, # 5 Exhibit E) (Komatireddy, Saritha) (Entered: 10/22/2015)
10/23/2015 16 NOTICE by Apple Inc. re Order,,,, Supplemental Response to Court October 9 2015 Order and Opinion
(Dreifach, Kenneth) (Entered: 10/23/2015)
10/23/2015 17 NOTICE by Apple Inc. re 9 Order on Motion for Leave to Appear Pro Hac Vice,, 8 Order on Motion for Leave
to Appear Pro Hac Vice,, of Filing of Certificates of Good Standing (Attachments: # 1 Exhibit A, # 2 Exhibit

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B) (Dreifach, Kenneth) (Entered: 10/23/2015)

10/26/2015 18 Minute Entry for proceedings held before Magistrate Judge James Orenstein:Motion Hearing held on
10/26/2015 re 1 MOTION to Compel filed by United States of America. I heard argument on the
government's motion and reserved decision. The government and Apple may submit supplemental letters in
support of their respective positions by October 28, 2015. (Orenstein, James) (Entered: 10/26/2015)
10/27/2015 19 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 10/26/2015, before Judge James
Orenstein. Court Reporter/Transcriber Rudolph, Telephone number 718-613-2538. Email address:
[email protected]. Transcript may be viewed at the court public terminal or purchased through the
Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may
be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located
under "Other Filings - Other Documents". Redaction Request due 11/17/2015. Redacted Transcript
Deadline set for 11/30/2015. Release of Transcript Restriction set for 1/25/2016. (Rudolph, Gene) (Entered:
10/27/2015)
10/28/2015

UNSEALING ORDER --- The Clerk of Court is respectfully directed to unseal docket entry 1 MOTION to
Compel by United States of America. Ordered by Magistrate Judge James Orenstein on 10/28/2015. (Guy,
Alicia) (Entered: 10/28/2015)

10/28/2015 20 NOTICE by Apple Inc. Supplemental Brief pursuant to Courts Civil Conference Minute Order (Zwillinger,
Marc) (Entered: 10/28/2015)
10/28/2015 21 REPLY in Support of the Government's Application for an All Writs Act Order (supplemental) filed by
United States of America. (Komatireddy, Saritha) (Entered: 10/28/2015)
10/29/2015 22 Letter by United States of America (Elbert, Lauren) (Entered: 10/29/2015)
10/30/2015

ORDER re 22 Letter filed by United States of America -- In light of the fact that the defendant against whom
evidence from the subject telephone was to be used has pleaded guilty, I respectfully direct the government
to explain why the application is not moot. To the extent the response requires the disclosure of information
occurring before a grand jury, the government may file its response under seal, along with a redacted
version suitable for public access. Ordered by Magistrate Judge James Orenstein on 10/30/2015. (Howley,
Thomas) (Entered: 10/30/2015)

10/30/2015 23 NOTICE of Appearance by Marc J. Zwillinger on behalf of Apple Inc. (aty to be noticed) (Zwillinger, Marc)
(Entered: 10/30/2015)
10/30/2015 24 NOTICE of Appearance by Jeffrey G. Landis on behalf of Apple Inc. (aty to be noticed) (Landis, Jeffrey)
(Entered: 10/30/2015)
10/30/2015 25 Letter Responding to the Court's October 30, 2015 Order by United States of America (Elbert, Lauren)
(Entered: 10/30/2015)
02/12/2016 26 Letter regarding Court's October 30, 2015 Order by Apple Inc. (Landis, Jeffrey) (Entered: 02/12/2016)
02/16/2016

ORDER re 26 Letter filed by Apple Inc. -- Because the assertions in its latest letter may affect my analysis of
certain arguments made by the government and Apple, Inc. ("Apple"), I respectfully request Apple to provide
certain details about the "additional requests similar to the one underlying the case before this Court" it has
received during the pendency of this matter. In particular, with respect to each such request, I ask Apple to
specify: (1) the jurisdiction in which the request was made, (2) the type of device at issue in the request and
the version of iOs being used on that device; (3) whether Apple opposed the request or otherwise sought or
obtained an opportunity to be heard on it before it was resolved; (4), the disposition of the request (together
with a copy of any opinion or order resolving the request, if materially different from the government's
proposed order in this matter); (5) whether Apple tried to unlock the device, either on consent or pursuant to
a court order; and (6) a description of the results of any such attempt to unlock the device (including
whether usable data was recovered, whether the attempt resulted in the deletion of stored data, or some
other result). Apple shall file its response under seal by March 1, 2016. No later than March 4, 2016, the
government may request the redaction of any details in the letter that would jeopardize any continuing
investigation; after reviewing any such request I will direct Apple to file a properly redacted version of its
response on the public record. Ordered by Magistrate Judge James Orenstein on 2/16/2016. (Howley,
Thomas) (Entered: 02/16/2016)

02/17/2016 27 Letter in Response to Court's February 16, 2016 Order by Apple Inc. (Attachments: # 1 Exhibit A, # 2
Exhibit B) (Landis, Jeffrey) (Entered: 02/17/2016)
02/17/2016

ORDER re 27 Sealed, Letter filed by Apple Inc. -- I respectfully direct the government to propose any
redactions necessary to protect continuing investigations by February 22, 2016. Ordered by Magistrate
Judge James Orenstein on 2/17/2016. (Howley, Thomas) (Entered: 02/17/2016)