AMICUS BRIEFS

Apple v. FBI
CENTRAL DISTRICT OF CALIFORNIA

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CONTENTS

SUMMARY

The dispute between Apple and the FBI arises out of an application that the agency filed with a federal
magistrate judge in California, seeking assistance with the search of an iPhone that was seized during
the investigation into the December 2015 attacks in San Bernardino, CA. The FBI was unable to access
data on the locked iPhone, which was owned by the San Bernardino Health Department but used by one
of the perpetrators, and requested that the Court order Apple to provide assistance in decrypting the
phone. But because Apple has no way to access the encrypted data on the seized iPhone, the FBI applied
for an order requiring Apple to create a custom operating system that would disable key security
features on the iPhone. The Court issued an order requiring that this custom hacking tool be created and
installed by Apple without unlocking or otherwise changing the data on the phone. Apple has opposed
the order on the grounds that it is unlawful and unconstitutional. Apple argues that if the order is
granted it will undermine the security of all Apple devices and set a dangerous precedent for future
cases.

BACKGROUND

The dispute between Apple and the FBI arises out of a warrant application that the agency filed in the
U.S. District Court for the Central District of California in December 2015, following the attacks in San
Bernardino. The case is captioned “In the Matter of the Search of An Apple iPhone Seized During the
Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203.” The FBI filed
an application for an order of assistance under the All Writs Act, 28 U.S.C. § 1651, on February 16,
2016. The Court granted the application the same day and issued a three page order requiring apple to
“assist in enabling” the search of the phone by “providing reasonable technical assistance,” which “shall
accomplish the following three important functions”:

1. it will by pass or disable the auto-erase function whether or not it has been enabled;

2. it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the
physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE;

3. it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the
device will not purposefully introduce any additional delay between passcode attempts beyond what
is incurred by Apple hardware
The Court also specified that “Apple’s reasonable technical assistance may include, but is not limited to:
providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File
(“SIF”) that can be loaded onto the SUBJECT DEVICE.” This custom software would need to be able to
“load and run from Random Access Memory (“RAM”) and will not modify the iOS on the actual phone, the
user data partition or system partition on the device’s flash memory.” Apple would also need to uniquely
code the software to the phone at issue and provide the government with a means to “conduct passcode
recovery analysis” on the device in an Apple facility or government facility.

The Court noted that Apple may seek to comply with the order “using an alternate technical means” if “it
can achieve the three functions” stated in the order. The Court also noted that “Apple shall advise the
government of the reasonable cost of providing this service” and that “[t]o the extent that Apple believes
that compliance with this Order would be unreasonably burdensome, it may make an application” to the
Court “within five business days” of the Order.

Shortly after the Court granted the FBI application and issued the order to Apple, the FBI moved to
unseal the documents and notified the press of its request for Apple’s assistance in the case. In
response, Apple CEO Tim Cook published a letter to Apple customers, making clear that the company
would oppose the order and that the order would set a “dangerous precedent.” The Court subsequently
issued a scheduling order, establishing deadlines for briefs in the case and setting a hearing for March
22, 2016 at 1:00pm. The FBI also filed a motion to compel compliance with the court’s February 16th
order.

On February 25, 2016, Apple filed its motion to vacate the Court’s order, arguing that the order is
unlawful and unconstitutional. Specifically, Apple argued that “[t]he All Writs Act does not provide a basis
to conscript Apple to create software enabling the government to hack into iPhones” and that the Order
“would violate the First Amendment and the Fifth Amendment’s Due Process clause.”

EPIC’S INTEREST

Since its founding more than 20 years ago, EPIC has been an advocate for the rights of consumers to
use strong encryption and the promotion of privacy enhancing technologies. This issue was at the center
of the national debate 1990s after the White House introduced the Clipper Chip proposal in 1993 and the
FBI led an effort to outlaw non-escrowed encryption. EPIC lead one of the first major Internet petitions in
opposition to the Clipper proposal after a group of leading cryptography experts sharply criticized the
Clipper Chip technology in a letter to the President. EPIC also filed amicus briefs in two important cases
concerning export controls and other restrictions on the use of encryption software, Bernstein v. U.S.
Department of Justice, 176 F.3d 1132 (9th Cir. 1999), vacated, 192 F.3d 1308 (9th Cir. 1999), and Karn
v. U.S. State Department, 107 F.3d 923 (D.C. Cir. 1997). The district court decision in Bernstein
established that code is speech and that restrictions on the dissemination of encryption software
burdened the First Amendment rights of a computer researcher. Ultimately the Clipper Chip proposal and
efforts to ban strong encryption were defeated.

EPIC also played a key role in the development of the international framework for cryptography and
privacy policy, which led to establishment of the OECD Cryptography Guidelines in 1997. These
guidelines outlined eight key principles to guide the development of international cryptography policy,
including (1) the establishment of trust in cryptographic methods in order to promote the use of
communications systems, (2) the right of users to choose any cryptographic method, and (3) the
protection of privacy and personal data. A report by the National Academy of Sciences also found in 1996
that cryptography “is a most powerful tool for protecting information” and that “many vital national
interests require the effective protection of information.” EPIC also prepared a report entitled
Cryptography and Liberty 2000, which outlined the state of international cryptography policy following
the resolution of the key escrow and export controls debates.
LEGAL DOCUMENTS

U.S. District Court for the Central District of California, Nos. 16-cm-00010 and 15-mj-00451

FBI Application Under the All Writs Act (Feb. 16, 2016)

Order Compelling Apple to Assist Agents in Search (Feb. 16, 2016)

Scheduling Order (Feb. 19, 2016)

FBI Motion to Compel Apple to Comply with the Court’s February 16, 2016 Order (Feb. 19, 2016)

Apple Motion to Vacate Order Compelling Assistance and Opposition to FBI Motion to Compel (Feb.
25, 2016)

Apple Notice of Objections to Order Compelling Assistance and Opposition to FBI Motion to Compel
(March 1, 2016)

Government’s Reply, with declarations but without exhibits (March 10, 2016)

Apple’s Reply, with declarations but without exhibits (March 15, 2016)

FBI Motion to Vacate Hearing (March 21, 2016)

Amicus Briefs in Support of Apple

32 Law Professors

Access Now and Wickr Foundation

ACT/The App Association

Airbnb, Atlassian, Automattic, CloudFlare, eBay, GitHub, Kickstarter, LinkedIn, Mapbox, Medium,
Meetup, Reddit, Square, Squarespace, Twilio, Twitter and Wickr

Amazon, Box, Cisco, Dropbox, Evernote, Facebook, Google, Microsoft, Mozilla, Nest, Pinterest,
Slack, Snapchat, WhatsApp, and Yahoo

American Civil Liberties Union, ACLU of Northern California, ACLU of Southern California, and
ACLU of San Diego and Imperial Counties

AT&T

AVG Technologies, Data Foundry, Golden Frog, the Computer & Communications Industry
Association (CCIA), the Internet Association, and the Internet Infrastructure Coalition

BSA|The Software Alliance, the Consumer Technology Association, the Information Technology
Industry Council, and TechNet

Center for Democracy & Technology

Electronic Frontier Foundation and 46 technologists, researchers, and cryptographers

Electronic Privacy Information Center (EPIC) and eight consumer privacy organizations

Intel

iPhone security and applied cryptography experts including Dino Dai Zovi, Dan Boneh (Stanford),
Charlie Miller, Dr. Hovav Shacham (UC San Diego), Bruce Schneier (Harvard), Dan Wallach (Rice)
and Jonathan Zdziarski
 Lavabit

The Media Institute

Privacy International and Human Rights Watch

Richard F. Taub

Letters to the Court

Beats, Rhymes & Relief, Center for Media Justice, The Gathering for Justice, Justice League NYC,
Opal Tometi and Shaun King

David Kaye, United Nations Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression | Supporting Document

Salihin Kondoker, San Bernardino, CA

Amicus Briefs in Support of the FBI

Amicus Brief from the Federal Law Enforcement Officers Association, Association of Prosecuting
Attorneys, and National Sheriffs’ Association, in support of the government (March 3, 2016)

Amicus Brief from the California State Sheriffs Association, California Police Chiefs’ Association
and the California Peace Officers’ Association, in support of the government (March 3, 2016)

Amicus Brief from families of victims in the San Bernardino shooting, in support of the
government (March 3, 2016)

Amicus Brief from the San Bernardino County District Attorney on behalf of the People of
California, in support of the government (March 3, 2016)

RESOURCES

Memorandum and Order, In re Order Requiring Apple, Inc. to Assist in the Execution of a Search
Warrant Issued by This Court, No. 15-mc-1902 (JO) (E.D.N.Y. Feb. 29, 2016)

EPIC: Cryptography Policy

EPIC: Cryptography and Liberty 2000

Recommendation of the Council Concerning Guidelines for Cryptography Policy, OECD (Mar. 27, 1997)

Cryptography’s Role in Securing the Information Society, Committee to Study National Cryptography
Policy, National Research Council (Kenneth W. Dam & Herbert S. Lin, eds. 1996)

Brief for Amici Curiae EPIC et al., Bernstein v. DOJ, 176 F.3d 1132 (9th Cir. 1999), vacated, 192 F.3d
1308 (9th Cir. 1999)

Brief for Amici Curiae EPIC et al., Karn v. U.S. State Department, 107 F.3d 923 (D.C. Cir. 1997)

NEWS

Alice B. Lloyd, Questions Leftover From The Apple-FBI Debate, Weekly Standard (Jul. 13, 2016)

Mark Skelton, What the Apple versus FBI Debacle Taught Us, Scientific American (May 20, 2016)
 Editorial Board, After Apple vs. FBI, more reasons to be wary in privacy fight, Los Angeles Daily News
(Apr. 29, 2016)

Lana Ciobotea, Why the Apple-FBI battle made people realize the importance of privacy faster than
Snowden, VentureBeat (Apr. 29, 2016)

Danny Yadron, FBI confirms it won’t tell Apple how it hacked San Bernardino shooter’s iPhone, The
Guardian (Apr. 28, 2016)

NEWS

Apple Pulls Encrypted Cloud Services and Rejects United Kingdom Request to Create Backdoors
to Encrypted Servers

FEBRUARY 28, 2025

FCC Signals Possible Update to Wiretap Regulations in Light of Massive Breach

DECEMBER 20, 2024

EPIC, Coalition Urge EU Council to Reconsider Proposals That Would Undermine Encryption

DECEMBER 12, 2024

See All News

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