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

IntroductionIf you own a smartphone with a lock-screen passcode, you most likely use encryption or at least have the option to turn it on.1 The extent to which that encryption is secure depends on a myriad of factors, most notably the device and its operating system.2 Full-disk encryption, once an underappreciated and underutilized security feature available for smartphones, has proliferated in recent years.3 Its increasingly widespread use as a default feature on newer devices is flooding the market with phones designed to be impenetrable when locked.4 Since October 2014, versions of Apple's iOS and Google's Android, which collectively comprise over ninety-six percent of the worldwide operating-system market share for smartphones, have supported encryption capabilities originally believed to be impossible to circumvent without the owner's passcode.5The new enhancements in device encryption are creating significant problems for law enforcement personnel, however, who are increasingly obtaining warrants to search the smartphones of criminal suspects and homicide victims with no means of executing those searches.6 In the past, Apple had regularly assisted law enforcement officials in bypassing the passcodes of seized phones in response to a valid court order and search warrant.7 That assistance, Apple claims, is no longer an option with updated phones because the newer encryption is designed to make it impossible for anyone, even company technicians, to access a locked phone without the passcode.8 Additional security features, such as automatic data-wiping protocols, may nullify many alternative methods of hacking into phones.9Collectively, these newer impediments effecting law enforcement's ability to access stored data represent the most recent installment in a larger issue colloquially referred to as "Going Dark."10 Generally, the term refers to the evolving gap between the government's authority to conduct criminal investigations and the ability to exercise that authority in light of technological advancements.11 Enhanced encryption has reignited a simmering debate between government officials and technology executives regarding the proper balance between data security and effective law enforcement.12 Moreover, recent court proceedings have drawn particular attention to the government's practice of obtaining uncontested court orders requiring Apple to provide technical assistance in accessing locked devices, which it has relied upon for several years.13 In October 2015, in In re Order Requiring Apple, Inc. Assist in Execution of Search Warrant ("In re Apple, Inc."), before U.S. Magistrate Judge James Orenstein in the U.S. District Court for the Eastern District of New York, Apple asserted its first challenge to such an order-application.14 Apple argued that it no longer conceded that the All Writs Act grants the authority to federal courts to order it to provide assistance to the government.15 Judge Orenstein agreed, and entered a decision holding the All Writs Act as unavailable as a matter of law to direct thirdparty assistance in this context, which represents the first of its kind.16 Although many believe that the issue will eventually be settled through legislation, the government's interim efforts to get into several locked phones has drawn much attention to the propriety of the All Writs Act and the federal courts' authority to command private assistance in order to effectuate a warrant.17This Note will discuss the federal courts' authority to issue orders upon third parties to provide technical assistance to the government under the All Writs Act, and the related implications within the debate regarding cellphone encryption of data at rest.18 Part I discusses the encryption of data at rest on cellphones, particularly the type of encryption used on iPhones, and further discusses some of the constitutional and statutory implications that arise when law enforcement officials wish to search a cellphone. …