—JUSTICE JOHN PAUL STEVENS DISSENT
UNITED STATES v. NEW YORK TELEPHONE CO. (1977)
February 13, 2016
Los Angeles, California
It was something of a chilly Saturday in Southern California, high 50s with a slight haze lingering over the western side of the city, just a few miles inland from the beach. Ted Boutrous was relaxing at his stately home in the hills of West Los Angeles, perched high above the constantly packed 405 freeway, when his phone buzzed.
He was expecting a call from Noreen Krall, one of Apple’s top lawyers. She wanted to speak with him about a “potentially significant matter that would be on a fast track,” but she didn’t explain precisely what it was about.
When Krall called, she was all business.
“I need to talk to you about something,” she said urgently.
Apple had a new problem, and it was with the federal government. Apple had complied with government access before—handing over data when presented with a court order. Apple could even extract data held on phones, and quietly did so for years. But in the wake of National Security Agency (NSA) whistleblower Edward Snowden in 2013, Apple reengineered its software (starting with iOS 8), making it impossible for even it to access data held locally on an iPhone. After a horrific and tragic terrorist attack, the government wanted Apple to break its own security to help the government. The whole debacle turned on two seemingly distant pieces of law: the 1789 All Writs Act, and the more recent but no less outdated 1977 case known as United States v. New York Telephone. And they all centered on one big question: How far can strong encryption go?
Krall joined Apple in March 2010 as a new set of attorneys led the charge in what then CEO Steve Jobs dubbed the company’s “thermonuclear war” (better known as patent lawsuits) against Google’s Android smartphone and Android manufacturers, most notably Samsung. The lawyer who started her career as an electrical engineer and had been hired away from Sun Microsystems was now one of the top legal arrows in Apple’s quiver.
Krall and Boutrous, both top-flight lawyers, had worked together previously on Apple’s e-books case, where prosecutors had come after the company, alleging collusion with publishers over e-book pricing. Boutrous had gotten to know both Krall and her boss, Bruce Sewell, Apple’s general counsel. (Weeks later, the Supreme Court would decline to hear the e-books case, which meant that the settlement that had been approved by a lower court would stand, and Apple was on the hook for a $450 million settlement.) Boutrous also had a reputation as a constitutional lawyer, and so Apple thought he could help again.
Krall explained that Apple was trying to talk the government—specifically US Attorney Eileen Decker—out of going ahead with an aggressive legal strategy. Decker had given Krall a helpful, but ominous, piece of information. Oftentimes, as a courtesy before pursuing a lawsuit or any other kind of legal action, one lawyer will let another know what’s coming. This frequently takes the form of a demand letter, where one party wants another to do something, and if they don’t, a lawsuit or other legal action will be filed. But the fact that this was coming from the federal government, and not another white-collar attorney, was unusual, and much more serious.
Yet this wasn’t exactly a lawsuit. Instead, federal prosecutors planned to compel Apple to assist in an ongoing terrorism investigation. Specifically, US Attorney Decker planned to go to a magistrate—the lowest-ranked federal judge—and ask her to sign off on a court order. This order would force Apple to help the FBI in their investigation of Syed Rizwan Farook, one of two terrorists who died during the December 2015 shooting in San Bernardino, California.
As part of the investigation, authorities recovered an iPhone 5c that was used by Farook. The phone technically belonged to the San Bernardino County Department of Public Health, where Farook worked. It wasn’t even his personal phone. And yet the information on it could potentially help with the government’s ongoing investigation into an act of terrorism.
However, there was just one problem with this phone. It was passcode-protected.
This problem couldn’t be solved by a visit to the Genius Bar of an Apple Store. Instead, what the government prosecutors wanted was to force Apple to reengineer its software so that the FBI could try an unlimited number of passcodes on the phone until it opened. As it stood, they were concerned that the phone might erase itself after ten wrong tries. But if Apple reprogrammed the phone to eliminate the passcode-entry limit, it would only be a matter of time before the FBI could brute force its way in.
Perhaps the FBI expected Apple to go along quietly, especially because of the ongoing investigation into a terrorist attack. But, as Krall warned Boutrous, if the court order comes, “Apple is going to have to fight it.”
Boutrous immediately went into battle mode, calling, texting, and e-mailing colleagues at his own law firm, and other legal allies that he would need. He began reading up on the relevant case law, and tried to anticipate what the government would argue in its filings. By Monday morning, Boutrous and his colleagues had set up a call with Assistant US Attorney Tracy Wilkinson—to whom Krall had reached out earlier, hoping for a courtesy conversation through back channels—for Tuesday afternoon.
But with no advance notice, the government filed its opening salvo on Tuesday morning. Rather than a few warning shots, the Department of Justice (DOJ) went in with its heavy artillery. In a 40-page court filing faxed to Apple and later e-mailed to Boutrous, the government claimed as its legal authority the All Writs Act, a semi-obscure law dating back to the late eighteenth century. The last time the All Writs Act had come before the Supreme Court was in 1977, in a case known as United States v. New York Telephone Co.
On that Tuesday, February 16, 2016, DOJ prosecutors wrote in their filing with a federal court in Riverside, California (the nearest federal court to San Bernardino, the site of the terrorist attack):
In New York Telephone Co., the Supreme Court considered three factors in concluding that the issuance of the All Writs Act order to the phone company was appropriate. First, it found that the phone company was not “so far removed from the underlying controversy that its assistance could not be permissibly compelled.” Id; at 174. Second, it concluded that the order did not place an undue burden on the phone company. See id. at 175. Third, it determined that the assistance of the company was necessary to achieve the purpose of the warrant. see id; Each of these factors supports issuance of the order directed to Apple in this case.
US Magistrate Judge Sheri Pym signed off on it promptly, at 11:00 AM PT.
Boutrous had dealt with the All Writs Act before, but not like this. As far as he knew, this little law was mostly used for courts to obtain procedural results—transporting a prisoner from one place to another, for example—but not to order a company to provide sophisticated technical assistance beyond what it would normally do during its course of business.
“It was extraordinary and unheard of, the kind of order they had obtained,” he told me, calling the order “offensive” to Apple.
“We never said the company couldn’t do it and didn’t have the ability or the resources to do it, that wasn’t the hardship. It was the threats that it would cause and it was an anathema to the company and the consumers.”
Wilkinson and her DOJ colleagues were cordial, but aggressive. They indicated that they were going to come back to the judge days later and file a motion to compel—yet another court order to enforce the first one.
“We indicated that we thought that made no sense,” Boutrous said. “We did think that motion to compel was a publicity stunt.” Despite the fact that the government ultimately didn’t proceed (more on that shortly), Boutrous notes that “it will be interesting to see if the federal government tries again for this kind of radical order.”
The key is: Will they try it again? Will they seek such an extraordinary order? I remain convinced that this legal theory under All Writs Act and New York Telephone, it’s just not going to work. The leap from New York Telephone
to the arguments that were being made in the Apple case are so gargantuan, it seems highly unlikely that the courts would ever accept that argument.
While the court battle was ultimately called off, the legal theory sits like a Chekhovian gun, waiting to go off. There’s a good chance that the government could try again to push its luck in court as a way to defeat encryption that it can’t bust through on its own. In fact, prosecutors may have already done so, under seal, partially as a way to avoid public scrutiny.
* * *
Ted Boutrous is a powerhouse attorney with Gibson Dunn, a major corporate law firm. He has a plum corner office on the fifty-fourth floor of 333 South Grand Avenue in downtown Los Angeles, along the northeastern corner of the building. If he spins around in his desk chair he directly overlooks Frank Gehry’s Walt Disney Concert Hall, the brushed metal home of the Los Angeles Philharmonic.
Although he was born in Los Angeles, the silver-haired Boutrous was raised in Bismarck, North Dakota, his mother’s hometown. As he grew up he decided he wanted to abandon the frozen plains for blistering deserts. That meant transferring out of college in North Dakota and into Arizona State University. He didn’t initially set out to be a lawyer, despite the fact that his father was a lawyer. He signed up to take the LSAT, the national law school exam, on the last day of late registration. At first, he attended Colorado State University for law school, but later transferred to the University of San Diego. According to a 2007 profile of him in the Los Angeles Times, Boutrous “graduated No. 1 in his class and was editor in chief of the San Diego Law Review.”
He decided that constitutional law was the route for him: that way, he could be involved in politics. As an undergraduate, he had majored in political science.
“Being able to have both a job that pays money but also lets you participate in these broader issues in society, that’s what hooked me,” he told an interviewer in March 2017.
After graduating, Boutrous decided not to clerk for a judge, and instead jumped right into corporate law. This was a highly unusual step. Most ambitious law students will go clerk for a judge for a time before entering the workforce, both as a way to gain experience from a judge’s perspective, and also to make professional connections.
“I didn’t want to clerk because I had taken a couple of extra years to get through law school,” Boutrous said.
After graduation and being admitted to the bar in December 1987, he landed an interview with Gibson Dunn, a well-known Los Angeles–based law firm with a notable presence in Washington, DC. This was practically a dream come true. Noted conservative attorney Ted Olson interviewed Boutrous for the job at Gibson Dunn. (Olson is perhaps best-known in recent years for being one of the top attorneys who successfully argued in 2013 before the Supreme Court in favor of same-sex marriage.) The two men could not have differed more, politically speaking. The elder is a lifelong conservative, and the younger a liberal Democrat. But they bonded over their mutual love for the law.
When Boutrous arrived at Gibson Dunn in Washington, DC, one of his first assignments was to work with Olson, who then served as outside counsel to President Reagan during the Iran-Contra hearings. A few years later, Boutrous really began his career as a constitutional, corporate, and media lawyer. As a young lawyer, he represented Newsday and its reporter Tim Phelps in defending and quashing a subpoena from the US Senate over leaks regarding prospective associate justice Clarence Thomas and Anita Hill. In fact, a number of his early cases involved media outlets.
By the mid-1990s, Boutrous was invited to help expand Gibson Dunn’s appellate practice in Los Angeles, and he jumped at the opportunity. Later, he represented other media outlets in their efforts to get documents unsealed as part of the Bill Clinton and Monica Lewinsky scandal. Boutrous reprised his efforts in 2004 as part of the Michael Jackson trial.
Boutrous is probably most famous for representing Wal-Mart in its stunning reversal of an employment class action, Wal-Mart Stores, Inc. v. Dukes (2011). In that case, a Wal-Mart employee, Betty Dukes, alleged gender discrimination despite positive performance reviews over several years. She sued Wal-Mart in a proposed class action that would have involved 1.6 million women who worked or have worked for the retail giant. Dukes won at the 9th US Circuit Court of Appeals, a decision that was overturned at the Supreme Court in a 5–4 decision—the highest court found that her case should not be certified as a class, but disagreed as to the legal rationale.
More recently, Boutrous is representing Uber in its ongoing labor dispute with its drivers. The case, known as O’Connor v. Uber, represents a major landmark in a rising tide of legal decisions and ongoing litigation in the so-called sharing economy. The four drivers, who now represent a class (like the Dukes case) are seeking to push Uber to recognize the service’s workers as employees rather than contractors.
This case, along with dozens of similar ongoing lawsuits filed against Uber and other tech firms, seeks to answer a simple question: Are the workers (here, the Uber drivers) adequately labeled contractors or should they be properly classified as employees? If they should be employees, then Uber and the other corporations would be on the hook for unemployment benefits, workers’ compensation, and reimbursement for mileage and other expenses. In short, it would cost Uber tens of millions, or hundreds of millions, if not more.
* * *
Within hours of the judge’s order on February 16, 2016—even before Apple was given a chance to respond in a court of law—the US Attorney’s Office in Los Angeles released a statement to the court of public opinion.
“We have made a solemn commitment to the victims and their families that we will leave no stone unturned as we gather as much information and evidence as possible,” Eileen Decker, the US attorney, wrote. “These victims and families deserve nothing less. The application filed today in federal court is another step—a potentially important step—in the process of learning everything we possibly can about the attack in San Bernardino.”
On Twitter, Decker’s office didn’t put out anything in particular on the San Bernardino case (not even their own public statement), but they did retweet a local NBC News story: “Judge Forces Apple to Help Unlock San Bernardino Shooter iPhone.”
In short, Boutrous and Apple were caught almost flat-footed. They knew that the government would probably go to a judge and try to get the order, but they didn’t realize it would come this fast. Krall, Boutrous, and what had swelled to a team of over a dozen lawyers got on the phone again to plot their next move.
The case was starting to pick up steam in the press—in some ways, it was a legal case that everyone could understand. After all, most people have an opinion about terrorism and what the government should do about it. Moreover, 77 percent of Americans now own a smartphone. Most people feel their privacy being invaded more viscerally when the government wants access to a device that is within arm’s reach at all times.
When the NSA’s Section 215 metadata program was revealed by Edward Snowden there was some pushback in the press and popular culture (and some modest legislative reform), but to a lot of people the country’s spookiest spy agency felt very far away. Section 215, which ran from 2001 until 2015, captured the incoming and outgoing calls of everyone in the United States. The government was not listening in to the calls, but rather was capturing the dates, times, durations, and phone numbers used—in other words, just the non-content metadata. (The program ended in 2015, but continues in a modified form where the government no longer holds this metadata directly, but rather is able to access it from private companies under court order.)
Still, for many people, metadata is a hard concept to grasp—its potential for revealing private information isn’t immediately obvious. But the idea of the government being able to bust into a seized phone, and demand that a smartphone maker help, is concerning.
There was a two-prong strategy that needed to unfold, a legal one and a public one. Boutrous, Krall, and the other attorneys quickly got on the phone with the judge and a la
wyer from the US Attorney’s Office to figure out a briefing schedule, essentially an itinerary of what would come when. Unlike a usual civil case, which typically takes months to even have an initial hearing before a judge, the case was moving with unprecedented speed.
“They were taking this very aggressive position, and they viewed it as being in their interest in playing hardball and publicly and in their briefs and in the timing of their filings,” Boutrous said.
When the clock struck midnight that evening in California, Apple CEO Tim Cook put out a lengthy public statement, saying that the company would resist what the government was demanding.
“We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them,” he wrote. “But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.”
The statement continued:
The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.
Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.
We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.
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