"First, there is a jurisdictional problem. There is no basis in the record for this Court
to assert Article III jurisdiction to issue or enforce the February 16, 2016 Order (“the
Apple Order”). The search warrant’s authority is already exhausted and the government’s
motion to compel recognizes that CALEA (“Communications Assistance for Law
Enforcement Act”) does not provide sufficient authority to support the Apple Order.
Rather, the government’s request rests solely on the All Writs Act. However, the All
Writs Act is not an original source of federal jurisdiction and cannot support the
government’s motion or this Court’s order. The All Writs Act merely provides a source
of residual authority where such jurisdiction independently exists.
Second, the underlying Order is invalid because it deprives Apple of liberty and
property without due process of law. The government initially took the time to seek
Apple’s help outside the judicial process. Only after Apple declined did the government
file its ex parte application, which did not allow Apple an opportunity to respond. Even
though Apple has now had an opportunity to respond to the government’s motion to
compel, the underlying Apple Order itself was issued in violation of due process and must
be vacated.
Third, CALEA and ECPA (“Electronic Communications Privacy Act”) govern the
substantive validity of the Order and set out telecommunications carriers’ obligations to
assist law enforcement. Significantly, when Congress enacted CALEA, it exempted
“information services,” which includes certain services that Apple provides, from that
requirement. The Supreme Court has instructed that where a statutory scheme governs a
particular subject matter, the All Writs Act’s residual power does not.
Finally, no court has ever issued a valid order that imposes an equivalent burden on
a non-party. Our research has not found any case that uses the All Writs Act to require a
third-party private entity to design and create new software. Some courts have compelled
disclosure of already-existing information in cases where the All Writs Act is found
applicable. In contrast, the order the government demands in this case would require
substantial expenditures of time and talent above and beyond what is appropriate under
the All Writs Act. This point is particularly alarming where Apple has made a deliberate
decision to exclude the features that the government now demands."
The mentioned brief is a very important read, and it's on the Apple's site here:
https://www.apple.com/pr/pdf/32_Law_Professors.pdf
From the INTRODUCTION:
"First, there is a jurisdictional problem. There is no basis in the record for this Court to assert Article III jurisdiction to issue or enforce the February 16, 2016 Order (“the Apple Order”). The search warrant’s authority is already exhausted and the government’s motion to compel recognizes that CALEA (“Communications Assistance for Law Enforcement Act”) does not provide sufficient authority to support the Apple Order. Rather, the government’s request rests solely on the All Writs Act. However, the All Writs Act is not an original source of federal jurisdiction and cannot support the government’s motion or this Court’s order. The All Writs Act merely provides a source of residual authority where such jurisdiction independently exists.
Second, the underlying Order is invalid because it deprives Apple of liberty and property without due process of law. The government initially took the time to seek Apple’s help outside the judicial process. Only after Apple declined did the government file its ex parte application, which did not allow Apple an opportunity to respond. Even though Apple has now had an opportunity to respond to the government’s motion to compel, the underlying Apple Order itself was issued in violation of due process and must be vacated.
Third, CALEA and ECPA (“Electronic Communications Privacy Act”) govern the substantive validity of the Order and set out telecommunications carriers’ obligations to assist law enforcement. Significantly, when Congress enacted CALEA, it exempted “information services,” which includes certain services that Apple provides, from that requirement. The Supreme Court has instructed that where a statutory scheme governs a particular subject matter, the All Writs Act’s residual power does not.
Finally, no court has ever issued a valid order that imposes an equivalent burden on a non-party. Our research has not found any case that uses the All Writs Act to require a third-party private entity to design and create new software. Some courts have compelled disclosure of already-existing information in cases where the All Writs Act is found applicable. In contrast, the order the government demands in this case would require substantial expenditures of time and talent above and beyond what is appropriate under the All Writs Act. This point is particularly alarming where Apple has made a deliberate decision to exclude the features that the government now demands."