“Going Dark” refers to law enforcement’s lack of technical ability to intercept and access communications and information. In response, the Department of Justice (DOJ) is using a law from the 1700s, the All Writs Act, which grants courts the power to issue “necessary or appropriate” writs to force cellphone manufacturers to assist it in extracting this information.

Two federal courts in New York and California have ordered the phone manufacturers (Apple and an unnamed manufacturer) to provide law enforcement with “reasonable technical assistance.” The New York court left it up to the manufacturer to request a hearing to limit any actions it determines are unreasonably burdensome. The California Court ordered Apple to bypass the cellphone user’s passcode, extract data from the cellphone and copy it to a storage medium. It did not require Apple to attempt to decrypt or otherwise enable law enforcement’s attempts to access any encrypted data.

By contrast, another New York court held that Apple cannot be automatically conscripted in government investigations because it is “a private-sector company that is free to choose to promote its customers’ interest in privacy over the competing interest of law enforcement.” The court requested that Apple advise whether it is capable of unlocking the device, and whether doing so would be unreasonably burdensome. Apple responded that, generally, for devices running a version of iOS 7, it can extract certain user-generated active files, but it cannot extract email, calendar entries, or any third-party app data. It noted, though, that aside from the technical burden to unlock the device, Apple may suffer other burdens including, reputation harm and requirements that its employees testify in the instance of criminal prosecution. The case is still pending.

Apple has warned that law enforcement requests soon will be impossible to perform, because Apple lacks the technical ability to unlock devices running iOS 8 or higher.

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