Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge NIEMEYER and Judge GREGORY joined.

AGEE, Circuit Judge:

Lavabit LLC is a limited liability company that provided email service. Ladar Levison is the company’s sole and managing member.1

In 2013, the United States sought to obtain certain information about a target2 in a criminal investigation. To further that goal, the Government obtained court orders under both the Pen/Trap Statute, 18 U.S.C. §§ 3123-27, and the Stored Communications Act, 18 U.S.C. §§ 2701-12, requiring Lavabit to turn over particular information related to the target. When Lavabit and Levison failed to comply with those orders, the district court held them in contempt and imposed monetary sanctions. Lavabit and Levison now appeal the sanctions.

For the reasons below, we affirm the judgment of the district court.

I.

A.

This case concerns the encryption processes that Lavabit used while providing its email service. Encryption describes the process through which readable data, often called “plaintext,” is converted into “ciphertext,” an unreadable jumble of letters and numbers. Decryption describes the reverse process of changing ciphertext back into plaintext. Both processes employ mathematical algorithms involving “keys,” which facilitate the change of plain-text into ciphertext and back again.

Lavabit employed two stages of encryption for its paid subscribers: storage encryption and transport encryption. Storage encryption protects emails and other data that rests on Lavabit’s servers. Theoretically, no person other than the email user could access the data once it was so encrypted. By using storage encryption, Lavabit held a unique market position in the email industry, as many providers do not encrypt stored data.

*280Although Lavabit’s use of storage encryption was novel, this case primarily concerns Lavabit’s second stage of encryption, transport encryption. This more common form of encryption protects data as it moves in transit between the client and the server, creating a protected transmission channel for internet communications. Transport encryption protects not just email contents, but also usernames, passwords, and other sensitive information as it moves. Without this type of encryption, internet communications move exposed en route to their destination, allowing outsiders to “listen in.” Transport encryption also authenticates — that is, it helps ensure that email clients and servers are who they say they are, which in turn prevents unauthorized parties from exploiting the data channel.

Like many online companies, Lavabit used an industry-standard protocol called SSL (short for “Secure Sockets Layer”) to encrypt and decrypt its transmitted data. SSL relies on public-key or asymmetric encryption, in which two separate but related keys are used to encrypt and decrypt the protected data. One key is made public, while the other remains private. In Lavabit’s process, email users would have access to Lavabit’s public keys, but Lava-bit would retain its protected, private keys. This technology relies on complex algorithms, but the basic idea is akin to a self-locking padlock: if Alice wants to send a secured box to Bob, she can lock the box with a padlock (the public key) and Bob will open it with his own key (the private key). Anyone can lock the padlock, but only the key-holder can unlock it.3

The security advantage that SSL offers disappears if a third party comes to possess the private key. For example, a third party holding a private key could read the encrypted communications tied to that key as they were transmitted. In some circumstances, a third party might also use the key to decrypt past communications (although some available technologies can thwart that ability). And, with the private key in hand, the third party could impersonate the server and launch a man-in-the-middle attack.

When a private key becomes anything less than private, more than one user may be compromised. Like some other email providers, Lavabit used a single set of SSL keys for all its various subscribers for technological and financial reasons. Lava-bit in particular employed only five key-pairs, one for each of the mail protocols that it supported.4 As a result, exposing one key-pair could affect all of Lavabit’s estimated 400,000-plus email users.

B.

With this technical background in mind, we turn to the case before us.

1.

On June 28, 2013, the Government sought and obtained an order (“the Pen/ *281Trap Order”) from a magistrate judge authorizing the placement of a pen register and trace-and-trap device on Lavabit’s system. This “pen/trap” device is intended to allow the Government to collect certain information, on a real-time basis, related to the specific investigatory target’s Lavabit email account.5 In accordance with the Pen/Trap Statute, 18 U.S.C. §§ 3121-27, the Pen/Trap Order permitted the Government to “capture all non-content dialing, routing, addressing, and signaling information ... sent from or sent to” the target’s account. (J.A. 10.) In other words, the Pen/Trap Order authorized the Government to collect metadata6 relating to the target’s account, but did not allow the capture of the contents of the target’s emails. The Pen/Trap Order further required Lavabit to “furnish [to the Government] ... all information, facilities, and technical assistance necessary to accomplish the installation and use of the pen/ trap device unobtrusively and with minimum interference.” (J.A. 11.)

On the same day that the Pen/Trap Order issued, FBI agents met with Levison, who indicated that he did not intend to comply with the order. Levison informed the agents that he could not provide the requested information because the target-user “had enabled Lavabit’s encryption services,” presumably referring to Lava-bit’s storage encryption. (J.A. 7.) But, at the same time, Levison led the Government to believe that he “had the technical capability to decrypt the [target’s] information.” (J.A. 6.) Nevertheless, Levison insisted that he would not exercise that ability because “Lavabit did not want to ‘defeat [its] own system.’ ” (J.A. 6.)

In view of Levison’s response, the Government obtained an additional order that day compelling Lavabit to comply with the Pen/Trap Order. This “June 28 Order,” again issued by a magistrate judge, instructed Lavabit to “provide the [FBI] with unencrypted data pursuant to the [Pen/Trap] Order” and reiterated that La-vabit was to provide “any information, facilities, or technical assistance ... under the control of Lavabit ... [that was] needed to provide the FBI with the unencrypted data.” (J.A. 9.) Further, the June 28 Order put Lavabit and Levison on notice that any “[failure to comply” could result in “any penalty within the power of the Court, including the possibility of criminal contempt of Court.” (J.A. 9.)

2.

Over the next eleven days, the Government attempted to talk with Levison about implementing the Pen/Trap Order. Levi-son, however, ignored the FBI’s repeated requests to confer and did not give the Government the unencrypted data that the June 28 Order required. As each day passed, the Government lost forever the ability to collect the target-related data for that day.

Because Lavabit refused to comply with the prior orders, the Government obtained an order to show cause from the district court on July 9. The show cause order directed both Lavabit and Levison, individ*282ually, to appear and “show cause why La-vabit LLC ha[d] failed to comply with the orders entered June 28, 2013[] in this matter and why [the] Court should not hold Mr. Levison and Lavabit LLC in contempt for its disobedience and resistance to these lawful orders.” (J.A. 21.) Entry of the show cause order spurred a conference call between Levison, his counsel, and representatives from the Government on July 10. During that call, the parties discussed how the Government could install the pen/trap device, what information the device could capture, and how the Government could view and preserve that information. In addition, the Government asked whether Levison would provide the keys necessary to decrypt the target’s encrypted information. Although the Government again stressed that it was permitted to collect only non-content data, neither Levison nor his counsel indicated whether Lavabit would allow the Government to install and use the pen/trap device.7

On July 13, 2013, four days after the show cause order issued, Levison contacted the Government with his own proposal as to how he would comply with the court’s orders. In particular, Levison suggested that Lavabit would itself collect the Government’s requested data:

I now believe it would be possible to capture the required data ourselves and provide it to the FBI. Specifically the information we’d collect is the login and subsequent logout date and time, the IP address used to connect to the subject email account and [several] non-content headers ... from any future emails sent or received using the subject account. ... Note that additional header fields could be captured if provided in advance of my implementation effort.

(J.A. 83.) Levison conditioned his proposal with a requirement that the Government pay him $2,000 for his services. More importantly, Levison also intended to provide the data only “at the conclusion of the 60[-]day period required by the [Pen/Trap] Order ... [or] intermittently!,] ... as [his] schedule allow[ed].” (J.A. 83.) If the Government wanted daily updates, Levison demanded an additional $1,500.8

The Government rejected Levison’s proposal, explaining that it needed “real-time transmission of results.” (J.A. 83.) Moreover, the Government would have no means to verify the accuracy of the information that Lavabit proposed to provide— a concerning limit given Lavabit’s apparent hostility toward the Government. Levison responded by insisting that the Pen/Trap Order did not require real-time access, but did not otherwise attempt to comply with the Pen/Trap Order or the June 28 Order.

3.

On July 16, 2013, three days after the Government received Levison’s proposal and the same day as the show cause hearing, the Government obtained a seizure warrant from the district court under the Stored Communications Act (“SCA”). See *28318 U.S.C. §§ 2701-12. The seizure warrant provided that Lavabit was to turn over “[a]ll information necessary to decrypt communications sent to or from [the target’s] Lavabit email account ..., including encryption keys and SSL keys.” (J.A. 27.) In addition, the warrant covered “[a]ll information necessary to decrypt data stored in or otherwise associated with [the target’s] Lavabit account.” (J.A. 27.)

4.

On July 16, Levison appeared before the district court pro se,9 on behalf of himself and Lavabit, for the show cause hearing. When asked whether he planned to comply with the Pen/Trap Order, Levison responded that he had “always agreed to the installation of the pen register device.” (J.A. 42.) Nonetheless, Levison objected to turning over his private SSL encryption keys “because that would compromise all of the secure communications in and out of [his] network, including [his] own administrative traffic.” (J.A. 42.) He also maintained that “[t]here was never an explicit demand [from the Government] that [he] turn over the keys.” (J.A. 45.)

The district court and the parties initially discussed whether the Pen/Trap Order required Lavabit to produce its encryption keys. The district court observed that the Pen/Trap Order’s “technical assistance” provision may or may not encompass the keys, but it declined to reach the issue during the show cause hearing “because [he had] issued a search warrant for that.” (J.A. 43.) The Government agreed that it had sought the seizure warrant to “avoid litigating [the] issue” of whether the Pen/ Trap Order reached the encryption keys (J.A. 43), but contended that the Pen/Trap Order and the June 28 Order “required the encryption keys to be produced” (J.A. 45).

After Levison assured the district court that he would permit the Government to install a pen/trap device on Lavabit’s system, the district court did not inquire further into whether Levison would turn over his encryption keys. The district court concluded that it need not yet resolve the matter because Levison had not been served with the seizure warrant and had not been called before the grand jury (as was anticipated by the then-outstanding grand jury subpoena). The district court then scheduled another hearing for July 26 to confirm that Lavabit had fully complied.

After the show cause hearing, Lavabit did permit the Government to install a pen/trap device. But, without the encryption keys, much of the information transmitted to and from Lavabit’s servers remained encrypted, indecipherable, and useless. The pen/trap device was therefore unable to identify what data within the encrypted data stream was target-related and properly collectable.

5.

Shortly before the scheduled hearing on compliance, Lavabit and Levison, now again represented by counsel, moved to quash the seizure warrant. In relevant part, their motion argued that the warrant (1) amounted to an impermissible general warrant barred by the Fourth Amendment; (2) sought immaterial information; and (3) imposed an undue burden on Lava-bit’s business.

In response, the Government contended that the warrant merely “re-state[d] and clarif[ied] Lavabit’s obligations under the Pen-Trap Act to provide that same infor*284mation.” (J.A. 86.) The Government noted that four different legal obligations, including the Pen/Trap Order and the June 28 Order, required Lavabit to produce the encryption keys. Lavabit’s motion to quash, however, did not mention either the Pen/Trap Order or the June 28 Order.

6.

On August 1, over a month after the Pen/Trap Order first issued, the district court held its second hearing.10 The court remarked that “[t]he difficulty or the ease in obtaining the information [didn’t] have anything to do with whether or not the government’s lawfully entitled to that information.” (J.A. 108.) For that reason, the district court denied the motion to quash the Government’s “very narrow, specific” warrant. (J.A. 108.) The court also found it reasonable that the Government would not collect all users’ data, even if the encryption keys would practically enable the Government to access all that data.

The district court then entered an order (the “August 1 Order”) directing Lavabit to turn over its encryption keys. The order further instructed Lavabit to provide the Government “any other ‘information, facilities, and technical assistance necessary to accomplish the installation and use of the pen/trap device’ as required by the July 16, 2013 seizure warrant and the [Pen/Trap Order].” (J.A. 118-19.) The August 1 Order directed Lavabit and Levi-son to turn over the encryption keys by 5:00 pm on August 2, 2013.

7.

Despite the unequivocal language of the August 1 Order, Lavabit dallied and did not comply. Just before the 5:00 pm August 2 deadline, for instance, Levison provided the FBI with an 11-page printout containing largely illegible characters in 4-point type, which he represented to be Lavabit’s encryption keys. The Government instructed Lavabit to provide the keys in an industry-standard electronic format by the morning of August 5. Lava-bit did not respond.

On August 5, nearly six weeks after the Government first obtained the Pen/Trap Order, the Government moved for sanctions against Levison and Lavabit for their continuing “failure to comply with [the] Court’s order entered August 1.” (J.A. 120.) The Government sought penalties of $5,000 a day until Lavabit provided the encryption keys to the Government. The district court granted the motion for sanctions that day.

Two days later, Levison provided the keys to the Government. By that time, six weeks of data regarding the target had been lost.11

8.

Lavabit and Levison timely appealed, and we have jurisdiction under 28 U.S.C. § 1291. See United States v. Myers, 593 F.3d 338, 344 n. 9 (4th Cir.2010) (“[A] civil-contempt order may be immediately appealed by a non[-]party [to the underlying action].”); see also Buffington v. Balt. Cnty., Md., 913 F.2d 113, 133 (4th Cir.1990) (explaining that civil contempt in-*285eludes “a fíne that would be payable to the court ... when the [contemnor] can avoid paying the fíne simply by performing the affirmative act required by the court’s order”). We further note that the appeal presents a live controversy even though Lavabit has now complied with the underlying orders, as Lavabit and Levison still face potential assessments based on their conduct in refusing to comply with the district court’s orders. See In re Grand Jury Subpoena (T-112), 597 F.3d 189, 195 (4th Cir.2010).

II.

A.

As a party appealing from a civil contempt order, Lavabit12 may ask us to consider “whether contempt was proper” and may challenge “the order alleged to have been violated” unless “earlier appellate review was available.” United States v. Myers, 593 F.3d at 344. In the ordinary case, we review the ultimate decision as to whether the contempt was proper for abuse of discretion, the underlying legal questions de novo, In re Grand Jury Subpoena, 597 F.3d at 195, and any factual findings for clear error, Oaks of Mid City Resident Council v. Sebelius, 723 F.3d 581, 584 (5th Cir.2013); cf. United States v. Peoples, 698 F.3d 185, 189 (4th Cir.2012) (same as to criminal contempt). Lavabit failed, however, to raise most of its present arguments before the district court; that failure significantly alters the standard of review.

B.

In the district court, Lavabit failed to challenge the statutory authority for the Pen/Trap Order, or the order itself, in any way. Yet on appeal, Lavabit suggests that the district court’s demand for the encryption keys required more assistance from it than the Pen/Trap Statute requires. La-vabit never mentioned or alluded to the Pen/Trap Statute below, much less the district court’s authority to act under that statute. In fact, with the possible exception of an undue burden argument directed at the seizure warrant, Lavabit never challenged the district court’s authority to act under either the Pen/Trap Statute or the SCA.

“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). In this circuit, we exercise that discretion sparingly. Our settled rule is simple: “[a]bsent exceptional circumstances, ... we do not consider issues raised for the first time on appeal.” Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 242 (4th Cir.2009); see also Agra, Gill & Duffus, Inc. v. Benson, 920 F.2d 1173, 1176 (4th Cir.1990) (“We will not accept on appeal theories that were not raised in the district court except under unusual circumstances.”).

When a party in a civil case fails to raise an argument in the lower court and instead raises it for the first time before us, we may reverse only if the newly raised argument establishes “fundamental error” or a denial of fundamental justice. Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir.1985). “Fundamental error” is “more limited” than the “plain error” standard that we apply in criminal cases. Id.; accord Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 142 (2d Cir.2007) (“To meet this [fundamental error] *286standard, a party must demonstrate even more than is necessary to meet the plain error standard in a criminal trial”)- So, when a party in a civil case fails to meet the plain-error standard, we can say with confidence that he has not established fundamental error. See, e.g., In re Celotex Corp., 124 F.3d 619, 631 (4th Cir.1997) (describing the criminal plain-error standard as a “minimum” standard that must be met before undertaking discretionary review of a waived argument in a civil case).13

Thus, we may use the criminal, plain-error standard — articulated by United States v. Olano, 507 U.S. 725, 730, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) — as something of an intermediate step in a civil case. See, e.g., Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369 F.3d 385, 396 (4th Cir.2004) (applying Olano standard in civil case). Under that familiar standard, we cannot reverse if the party fails to establish: “(1) there is an error; (2) the error is plain; (3) the error affects substantial rights; and (4) the court determines ... that the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Celotex, 124 F.3d at 630-31. Even the lesser showing needed for “[pjlain error review is strictly circumscribed, and meeting all four prongs is difficult, as it should be.” United States v. Byers, 649 F.3d 197, 213 (4th Cir.2011) (quotation marks and alteration omitted).

We employ these rules not to trap unwary litigants, but to advance several important and “obvious” purposes. Wheatley v. Wicomico Cnty., Md., 390 F.3d 328, 335 (4th Cir.2004). Among other things, forfeiture and waiver rules offer “respect for the [integrity of the] lower court, [avoid] unfair surprise to the other party, and [acknowledge] the need for finality in litigation and conservation of judicial resources.” Holly Hill Farm, 447 F.3d at 267. Our sister circuits have suggested other reasons beyond these: waiver rules ensure that the parties develop the necessary evidence below, In re Diet Drugs Prod. Liab. Litig., 706 F.3d 217, 226 (3d Cir.2013), and “prevent parties from getting two bites at the apple by raising two distinct arguments,” Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 608 (7th Cir.2012); see also HTC Corp. v. IPCom GmbH & Co., KG, 667 F.3d 1270, 1282 (Fed.Cir.2012) (collecting cases). The Supreme Court has likewise warned us not to lightly dismiss the many interests underlying preservation requirements. See, e.g., Wood v. Milyard, — U.S. —, 132 S.Ct. 1826, 1834, 182 L.Ed.2d 733 (2012) (“Due regard for the trial court’s processes and time investment is also a consideration appellate courts should not overlook.”); Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 n. 6, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (“[T]he complexity of a case does not eliminate the value of waiver and forfeiture rules, which ensure that parties can determine when an issue is out of the case, and that litigation remains, to the extent possible, an orderly progression.”).

*287Forfeiture and waiver principles apply with equal force to contempt proceedings. See, e.g., In re Gates, 600 F.3d 333, 337 (4th Cir.2010) (applying plain-error standard to unpreserved claim of error in criminal contempt proceedings); United States v. Neal, 101 F.3d 993, 996 (4th Cir.1996) (same). If anything, “[t]he axiom that an appellate court will not ordinarily consider issues raised for the first time on appeal takes on added significance in the context of contempt.” In re Bianchi, 542 F.2d 98, 100 (1st Cir.1976) (internal citation omitted). After all, “[d]enying the court of which [a party] stands in contempt the opportunity to consider the objection or remedy is in itself a contempt of [that court’s] authority and an obstruction of its processes.” Id. (quotation marks omitted).

C.

Lavabit argues that it preserved an appellate challenge to the Pen/Trap Order when Levison objected to turning over the encryption keys at the initial show cause hearing. We disagree.

In making his statement against turning over the encryption keys to the Government, Levison offered only a one-sentence remark: “I have only ever objected to turning over the SSL keys because that would compromise all of the secure communications in and out .of my network, including my own administrative traffic.” (J.A. 42.) This statement — which we re: cite here verbatim — constituted the sum total of the only objection that Lavabit ever raised to the turnover of the keys under the Pen/Trap Order. We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit now raises on appeal: a statutory-text-based challenge to the district court’s fundamental authority under the Pen/Trap Statute. Levison’s statement to the district court simply reflected his personal angst over complying with the Pen/Trap Order, not his present appellate argument that questions whether the district court possessed the authority to act at all.

Arguments raised in a trial court must be specific and in line with those raised on appeal. “To preserve an issue for appeal, an objection [or argument] must be timely and state the grounds on which it is based.” Kollsman, a Div. of Sequa Corp. v. Cohen, 996 F.2d 702, 707 (4th Cir.1993). It follows then that “an objection on one ground does not preserve objections based on different grounds.” United States v. Massenburg, 564 F.3d 337, 342 n. 2 (4th Cir.2009).14 Similarly, a party does not go far enough by raising a non-specific objection or claim. “[I]f a party wishes to preserve an 'argument for appeal, the party must press and not merely intimate the argument during the proceedings before the district court.” Dallas Gas Partners, L.P. v. Prospect Energy Corp., 733 F.3d 148, 157 (5th Cir.2013); see also United States v. Bennett, 698 F.3d 194, 199 (4th Cir.2012) (finding defendant waived argument where his argument below wás “too general to alert the district court to the specific [objection]”).

In arguing that it can still pursue the issue despite its failure to raise any specific argument challenging the Pen/Trap Or*288der below, Lavabit gives far too broad a reading to Yee v. City of Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). Yee explained that, “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” 503 U.S. at 534, 112 S.Ct. 1522. We, too, have recognized our need to “consider any theory plainly encompassed by the submissions in the underlying litigation.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 604 (4th Cir.2004).

Yet Lavabit neither “plainly” nor “properly” identified these issues for the district court, and a comparison between this case and Yee illustrates why. In Yee, the parties raised before the district court a Fifth Amendment takings claim premised on physical occupation. 503 U.S. at 534-35, 112 S.Ct. 1522. Before the Supreme Court, however, they argued that the taking occurred by regulation. Id. The difference in form there was immaterial because the appealing party asked both courts to evaluate the same fundamental question: whether the challenged acts constituted a taking. In other words, the appellant/petitioner in Yee raised two variations of the same basic argument. In contrast, the difference in the case at bar is marked and material: Lavabit never challenged the statutory validity of the Pen/Trap Order below or the court’s authority to act. To the contrary, Lavabit’s only point below alluded to the potential damage that compliance could cause to its chosen business model.15

Neither the district court nor the Government therefore had any signal from Lavabit that it contested the district court’s authority under the Pen/Trap Statute to enter the Pen/Trap Order or the June 28th Order. In fact, by conceding at the August 1 hearing “that the [Government [was] entitled to the [requested] information,” it likely led the district court to believe exactly the opposite. (J.A. 108.) Accordingly, Lavabit failed to preserve any issue for appeal related to the Pen/ Trap Statute or the district court’s authority to act under it. See Nelson v. Adams USA, Inc., 529 U.S. 460, 469, 120 S.Ct. 1579, 146 L.Ed.2d 530 (2000) (“[T]he general rule that issues must be raised in lower courts in order to be preserved as potential grounds of decision in higher courts ... requires that the lower court be fairly put on notice as to the substance of the issue.”).

D.

Lavabit contends that, even if it failed to raise a cognizable objection to the Pen/Trap Order in the district court, then the Government and the district court induced it to forfeit its present challenges. We know of no case recognizing an “invited” or “induced” waiver exception to the traditional forfeiture and waiver principles. Lavabit has not identified any basis for such an exception, other than its subjective belief that it is now in an “unfair” position. But that is not an argument that permits us to cast aside the well-understood interests underlying our preservation requirements. Cf. Hawkins v. United States, 724 F.3d 915, 918 (7th Cir.2013) (“Finality is an institutional value and it is tempting to subordinate such a value to the equities of the individual case. But there are dangers, especially if so vague a term as ‘fairness’ is to be the touchstone.”).

*289In any event, we disagree with Lavabit’s factual premise, as neither the Government nor the district court induced or invited Lavabit to waive anything.

The Government did not lead Lavabit to believe that the Pen/Trap Order was somehow irrelevant. To be sure, the Government focused more on the seizure warrant than the Pen/Trap Order at certain times in the proceedings. At the August 1 hearing, for example, the Government concentrated on the seizure warrant and the later-withdrawn grand jury subpoena because the motion under consideration— Lavabit’s motion to quash — only addressed those two objects. The Government, however, never stopped contending that the Pen/Trap Order, in and of itself, also required Lavabit to turn over the encryption keys. For example, the Government specifically invoked the Pen/Trap Order in its written response to Lavabit’s motion to quash by noting that “four separate legal obligations” required Lavabit to provide its encryption keys, including the Pen/ Trap Order and the June 28 Order. (J.A.86.) If Lavabit truly believed the Pen/ Trap Order to be an invalid request for the encryption keys, then the Government’s continuing reliance on that order should have spurred Lavabit to challenge it.

The district court’s actions also put Lavabit on notice that the Pen/Trap Order implicated Lavabit’s encryption keys. The June 28 Order referred to encryption, and the August 1 order compelling Lavabit to turn over its keys relied upon two independent sources of authority: “the July 16, 2013 seizure warrant and the June 28, 2013 [Pen/Trap Order].” (J.A. 119 (emphasis added).) The August 1 Order, with its plain and unequivocal citation to the Pen/Trap Order, informed Lavabit that the Pen/Trap Order needed to be addressed because it was the cited authority for the turnover of the encryption keys. Even if the district court had earlier equivocated about whether the Pen/Trap Order reached Lavabit’s encryption keys, those doubts were dispelled once the August 1 Order issued.16 “When the terms of a judgment conflict with either a written or oral opinion or observation, the judgment must govern.” Murdaugh Volkswagen, Inc. v. First Nat'l Bank of S.C., 741 F.2d 41, 44 (4th Cir.1984); see also id. (“Courts must speak by orders and judgments, not by opinions, whether written or oral, or by chance observations or expressed intentions made by courts during, before or after trial, or during argument.”). At an absolute minimum, if La-vabit believed that the turnover of the keys was invalid under the Pen/Trap Order, then it should have acted once the district court’s August 1 order issued. It did not.

E.

Lavabit tenders other reasons why we should exercise our discretion to hear its Pen/Trap Statute argument, but we find no merit in those arguments. We doubt that Lavabit’s listed factors could ever justify de novo review of an argument raised for the first time on appeal in a civil case in this circuit.

Many years ago, this circuit held that, “at a minimum, the requirements of [the plain-error standard] must be satisfied before we may exercise our discretion to *290correct an error not raised below in a civil ease.” In re Celotex, 124 F.3d at 631 (emphasis added). It makes no difference then that Lavabit’s Pen/Trap Statute argument presents a supposedly “pure question of law” (Reply Br. 6), or that Lavabit was unrepresented during some of the proceedings below, or that Lavabit believes this case to be one of “public concern” (Reply Br. 6).

At the outset, we do not agree that the issue is a “purely legal” one. At the very least, interpreting the Pen/Trap Statute’s third-party-assistance provision would require us to consider technological questions of fact that have little to do with “pure law.” But even if the question were legal, that would not alone justify our review. Though some circuits will sometimes put aside the plain-error framework when a case presents this sort of question, see, e.g., Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 582 n. 26 (5th Cir.2013), our precedents do not embrace that approach. To the contrary, we have taken a more structured view, recognizing that the forfeiture rule “is a salutary rule even where the ground urged for reversal is a pure question of law.” Legg’s Estate v. Comm’r, 114 F.2d 760, 766 (4th Cir.1940); accord Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128-30 (10th Cir.2011) (rejecting a party’s contention that a forfeited but “purely legal” issue could be considered outside the plain-error framework).

Nor does it matter that Lavabit and Levison were unrepresented by counsel during parts of the proceedings below.17 “Although pro se complaints [and arguments] are to be liberally construed, the failure to first present claims to the district court generally forecloses our consideration of these matters on appeal.” United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990); cf. Williams v. Ozmint, 716 F.3d 801, 810-11 (4th Cir.2013) (“We long have recognized that, despite our expansive consideration of the pleadings of pro se litigants, ... appellate courts should not permit ... fleeting references to preserve questions on appeal.”). Neither this Court nor the Supreme Court has ever “suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), Especially given Lavabit’s on-again-off-again relationship with various legal counsel, no reason exists to do so here.18

Finally, Lavabit proposes that we hear its challenge to the Pen/Trap Order be*291cause Lavabit views the case as a matter of “immense public concern.” (Reply Br. 6.) Yet there exists a perhaps greater “public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.” United States v. Atkinson, 297 U.S. 157, 159, 56 S.Ct. 391, 80 L.Ed. 555 (1936). And exhuming forfeited arguments when they involve matters of “public concern” would present practical difficulties. For one thing, identifying cases of a “public concern” and “non-public concern” — divorced from any other consideration — is a tricky task governed by no objective standards. See, e.g., Tony A. Weigand, Raise or Lose: Appellate Discretion and Principled Decision-Making, 17 Suffolk J. Trial & App. Advoc. 179, 280-87 (2012) (describing vagueness and other problems with a “public importance” approach); Barry A. Miller, Sua Sponte Appellate Rulings. When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L.Rev. 1253, 1306-07 (2002) (“[W]hat is an important public interest to one court will be unimportant to another. The line will be particularly difficult to draw and will often appear nakedly political.”). For another thing, if an issue is of public concern, that concern is likely more reason to avoid deciding it from a less-than-fully litigated record. See, e.g., Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1039 (D.C.Cir.2003) (“The issue presented, however, is of sufficient public importance and complexity to counsel strongly against deciding it in this posture.”); Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (refusing to excuse procedural waiver where ease involved “important questions of far-reaching significance”). Accordingly, we decline to hear Lavabit’s new arguments merely because Lavabit believes them to be important.

In sum, Lavabit’s assorted reasons to exercise any discretionary review authority do not convince us to review its Pen/Trap Statute arguments de novo. If Lavabit is to succeed on its Pen/Trap Statute claim, it must at least show plain error.

III.

A.

The Pen/Trap Statute requires law enforcement authorities to obtain court orders to install and use pen registers and trap/trace devices. The requirements for these orders are less onerous than the requirements that apply to Government requests for the “content” of communications, as pen/trap devices do not collect “content” but only information associated with the transfer of that content.19 As to internet communications, pen/trap devices collect only metadata, such as an email’s “To:” and “From:” fields, the date and time of transmissions, and user login information. See 18 U.S.C. § 3127(3), (4) (forbidding pen registers and trap/trace devices from collecting “the contents of any communication”).

The Pen/Register Statute also includes provisions requiring third parties to provide technical assistance to the Government in connection with those devices. See 18 U.S.C. §§ 3124(a), (b). Under the pen-register provision, for instance, Lava-bit must provide:

all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party *292with respect to whom the installation and use is to take place.

Id. § 8124(a). Similarly, under the trap/ trace provision, Lavabit must furnish:

all additional information, facilities and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if such installation and assistance is directed by a court order as provided in section 3123(b)(2) of this title.

Id. § 3124(b) (emphasis added).

Thus, Sections 3124(a) and (b) are similar, but not identical. The pen-register provision refers only to information “necessary to accomplish the installation,” id. § 3124(a), while the trap/trace provision references information “including installation and operation,” id. § 3124(b).

B.

Lavabit now argues that the third-party-assistance provisions found in Sections 3124(a) and (b) do not reach the SSL keys. It reads those provisions to require only enough assistance to attach the pen/trap device to Lavabit’s system, not any assistance necessary to make the device operationally effective. Further, Lavabit contends that it needed to offer only enough help to make the installation unobtrusive. And it insists that Congress never could have intended to grant the Government the broad power to ask for encryption keys through the more general language found in the third-party-assistance provisions.

All these new arguments notwithstanding, Lavabit failed to make its most essential argument anywhere in its briefs or at oral argument: it never contended that the district court fundamentally or even plainly erred in relying on the Pen/Trap Statute to compel Lavabit to produce its keys. Yet Lavabit bears the burden of showing, “at a minimum,” plain error. Cf. United States v. Carthorne, 726 F.3d 503, 510 (4th Cir.2013) (noting, in criminal context, that the appealing defendant bears the burden of showing plain error); see also, e.g., Abernathy v. Wandes, 713 F.3d 538, 553 n. 12 (10th Cir.2013) (noting in civil context that the party that failed to preserve his argument bears the burden of showing plain error). And “[a] party’s failure to raise or discuss an issue in his brief is to be deemed an abandonment of that issue.” Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir.2012); see also IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 308 (4th Cir.2003) (“Failure to present or argue assignments of error in opening appellate briefs constitutes a waiver of those issues.”). Taken together, these two principles carry us to one inevitable conclusion: Lavabit’s “failure to argue for plain error and its application on appeal ... surely marks the end of the road for [its] argument for reversal not first presented to the district court.” Richison, 634 F.3d at 1131; see also Jackson v. Parker, 627 F.3d 634, 640 (7th Cir.2010) (rejecting party’s plain error argument where, among other things, he “ha[d] not made an attempt — either in his briefs or at oral argument — to show that the elements for plain error review ha[d] been satisfied”).

Lavabit abandoned any argument that the district court plainly erred, much less fundamentally erred, in relying upon the Pen/Trap Order to find Lavabit in contempt. Moreover, Lavabit fails to identify any potential “denial of fundamental justice” that would justify further review. For the same reason, then, Lavabit has abandoned that argument as well.

*293C.

We reiterate that our review is circumscribed by the arguments that La-vabit raised below and in this Court. We take this narrow course because an appellate court is not a freestanding open forum for the discussion of esoteric hypothetical questions. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 489 F.2d 966, 967 (4th Cir.1974) (“[The] Court does not sit to render decisions on abstract legal propositions or advisory opinions.”). Rather, we adjudicate the legal arguments actually raised. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 654 (4th Cir.2006) (observing that our “system of justice” is one “in which the parties are obliged to present facts and legal arguments before a neutral and relatively passive decision-maker”). Our conclusion, then, must tie back to the contempt, as the actual order on appeal, and the proceedings below, as the record that constrains us.

IV.

Lavabit also raises several challenges to the seizure warrant, but we need not, should not, and do not reach those arguments. The district court’s orders compelling Lavabit to turn over its encryption keys relied on two, separate independent grounds: the Pen/Trap Order and the seizure warrant. Thus, the court’s later finding of contempt found that Lavabit violated both the two prior orders. When two independent bases support a district court’s contempt order, it is enough for us to find that one of those bases was appropriate. See Consol. Coal Co. v. Local 1702, United Mineworkers of Am., 683 F.2d 827, 831-32 (4th Cir.1982) (declining to address second of two independent bases for contempt order where first basis was properly affirmed). This contempt-specific rule flows from the more general maxim that, “[t]o obtain reversal of a district court judgment based on multiple, independent grounds, an appellant must convince us that every stated ground for the judgment against him is incorrect.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.2014).

Furthermore, some of Lava-bit’s additional arguments implicate constitutional concerns. Those concerns provide even more reason to avoid addressing La-vabit’s new arguments. “The principle of constitutional avoidance ... requires the federal courts to avoid rendering constitutional rulings unless absolutely necessary.” Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 157 (4th Cir.2010) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)); see also Bell Alt. Md., Inc. v. Prince George’s Cnty., Md., 212 F.3d 863, 865 (4th Cir.2000) (“[C]ourts should avoid deciding constitutional questions unless they are essential to the disposition of a case.”). So, we “will not decide a constitutional question, particularly a complicated constitutional question, if another ground adequately disposes of the controversy.” Strawser v. Atkins, 290 F.3d 720, 730 (4th Cir.2002). The long-established constitutional-avoidance rule applies squarely to this case.

V.

In view of Lavabit’s waiver of its appellate arguments by failing to raise them in the district court, and its failure to raise the issue of fundamental or plain error review, there is no cognizable basis upon which to challenge the Pen/Trap Order. The district court did not err, then, in finding Lavabit and Levison in contempt once they admittedly violated that order. The judgment of the district court is therefore

AFFIRMED.

MEMORANDUM AND ORDER

JAMES ORENSTEIN, Magistrate Judge:

The government seeks an order requiring Apple, Inc. (“Apple”) to bypass the passcode security on an Apple device. It asserts that such an order will assist in the execution of a search warrant previously issued by this court, and that the All Writs Act, 28 U.S.C. § 1651(a) (the “AWA”), empowers the court to grant such relief. Docket Entry (“DE”) 1 (Application). For the reasons set forth below, I conclude that under the circumstances of this case, the goveimment has failed to establish either that the AWA permits the relief it seeks or that, even if such an order is authorized, the discretionary factors I must consider weigh in favor of granting the motion. More specifically, the established rules for interpreting a statute’s text constrain me to reject the government’s interpretation that the AWA empowers a court to grant any relief not outright prohibited by law. Under a more appropriate understanding of the AWA’s function as a source of residual authority to issue orders that are “agreeable to the usages and principles of law,” 28 U.S.C. § 1651(a), the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to issue an order under the AWA: the closeness of Apple’s relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; and the necessity of imposing such a burden on Apple. As explained below, after reviewing the facts in the record and the parties’ arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government’s investigation against its will. I therefore deny the motion.

I. Background

On June 6, 2014, a magistrate judge of this court granted the government’s appli*345cations for a warrant to search the Queens, New York residence of Jun Feng (“Feng”), whom it suspected of involvement in drug trafficking, as well as for warrants to. arrest Feng and other suspected eoconspira-tors. United States v. The premises known and described as 41-21 149th Street, 1st Fl., Queens, NY, 14-MJ-0530 (MDG), DE 2 (search warrant) (sealed); United States v. Shu Yong Yang, et al., 14-CR-0387 (MKB), DE 1 (complaint) & DE 2 (arrest warrants).' Feng was arrested on June 11, 2014, and initially ordered detained; he was subsequently released on conditions on July 18, 2014. Yang, DE 25 (minute entry); DE 26 (detention order); DE 50 (minute order reflecting release). On July 9, 2014, a grand jury sitting in this district issued an indictment accusing Feng and four other named defendants, together with unnamed others, of conspiracy to traffic in methamphetamine. See Yang, DE 47 ¶ 2.

In executing the warrant to search Feng’s residence, agents of the United States Drug Enforcement Agency (“DEA”) properly seized several mobile devices, including Feng’s mobilé telephone. See Govt. II at 5.1 As agents later learned, that telephone was an iPhone 5s that used Apple’s iOS 7 for its operating system.2 See id.', Tr. at7.3

' Over the course of the next year, although the prosecution of Feng and his codefendants moved forward (as did, presumably, the government’s investigation of the unknown others mentioned in the indictment), the government apparently did nothing at all to discover what evidence, if any, could be gleaned from Feng’s iPhone. Instead, it waited until July 6, 2015, to seek a warrant to search that device -and the others .seized from Feng’s residence. See United States v. Cellular Telephone Devices Seized On Or About June 11, 2014 From Premises Located At 41-21 149th Street, First Floor, In Queens, NY, 15-MJ-0610 (VVP), DE 1 (application for warrant to search devices) (the “Device Application”). A magistrate judge of this court granted the latter application and issued a warrant to search the devices that same day. Id., DE 2 (the “Device Warrant”). Like the earlier warrant to search Feng’s residence, this warrant set a two-week time limit on its execution. Id.

At some point during the following two weeks, the government “initiate[d] the execution of the search warrant [for Feng’s *346iPhone] by attempting to search the' device, turning it on and placing it in airplane mode. The [DEA] agents ... began that search but were unable to complete [it} because” the device required a password to allow access to certain information. Tr. at 6. The DEA agents then sought the assistance of the Federal Bureau of Investigation (“FBI”), but remained unable to bypass the iPhone’s passcode security. Id at 6-7; see also Govt. II at 5.

At that point — after the expiration of the two-week' period during which agents were permitted to execute the Device Warrant — the government sought Apple’s technical assistance. See Govt. II at 6; Tr. at 6. There appears to be no dispute that Apple’s response, consistent with its past practice in at least 70 instances, was that it could and would unlock Feng’s phone for the agents, but only if a court issued a lawful order requiring it to do so. See Govt. II at 6-7; Tr. at 7-8. Also’ consistent with past practice, Apple provided the agents with the specific technical language it deemed sufficient to make clear its obligation to provide the services that would allow the agents to gain access to the iPhone’s passcode-protected data. See Govt. II at 6-7; Tr. at 7-8, 56-57.4

On October 8, 2015,' the government filed the instant Application, together with the proposed order that Apple had helped it draft. Relying exclusively on the AWA (and cases interpreting it) for authority, the government made several pertinent factual assertions beyond those recounted above:

• “Because the iOS device is locked, law enforcement agents are not able to examine the data stored on the iOS device as commanded by the search warrant.” ' Govt. Fat 1..

• “[I]n other cases, courts have ordered Apple to assist in effectuating search warrants under the authority of the All Writs Act. Additionally, Apple has complied with such orders,” Id. at 2.

• “The requested order would enable agents to comply with this' Court’s warrant commanding that the iOS device be examined for evidence identified by the warrant.” Id.

• “Examining the iOS device further without Apple’s assistance, if it is possible at all, would require significant . resources and may harm the iOS device.” Id. at 2-3.

*347• “[T]he [requested] order is not likely to place any unreasonable burden on Apple.” Id. at 3.

On October 9, 2015, I issued a Memorandum and Order that declined to rule on the Application ex parte, and instead afforded Apple an opportunity to be heard in advance of any decision about the applicability of the AWA in the circumstances of this case. DE 2, In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, 2015 WL 5920207 (E.D.N.Y. Oct. 9, 2015). I simultaneously directed the Clerk to maintain the Application — but not the Memorandum and Order, which revealed no factual details of the matter — under seal, on the mistaken assumption that its public dissemination could adversely affect an ongoing criminal investigation.' DE 3. In its subsequent submission, the government stated that it had never intended to submit under seal- either the Application or the proposed order (both of which it attached to its publicly filed legal memorandum), and also noted that the 2015 search warrant authorizing the search of Feng’s iPhone was already available on the public docket. See Govt. II at 2 n.l & Ex. A.

Apple submitted its initial opposition to the Application on October 19, 2015; the government replied on October 22, 2015; Apple filed a supplemental response on October 23, 2015;5 and I’ heard oral argument on October 26, 2015. See Apple I; Govt. II; Apple II; DE 18 (minute entry). At oral argument, it becahae apparent that there were a number of factual and legal issues that the government and Apple should have further opportunity to address, and I therefore set a schedule for them to file post-hearing submissions.' DE 18. Apple and the government filed their respective supplemental "briefs on October 28,2015. See Govt. Ill; Apple III.

The accelerated briefing and argument schedule described above was not a.reflection of the simplicity of the issues in dispute. Rather, it accommodated the government’s interest in Resolving the matter (both before me and on review of, my decision by a district judge) in sufficient time to use any evidence it -might secure with Apple’s assistance at Feng’s trial, which was then scheduled to begin on November 16, 2015. See Govt. II.at. 4. However, just one day after the oral argument .in this case, the cour,t, scheduled a proceeding to have Feng enter a new. plea; two days later, on. October 29, 2015, Feng pleaded guilty pursuant to an agreement with the government.- See Yang, Scheduling Order dated Oct. 27, 2015;.,id,,- DE 119 (transcript of plea allocution dated Oct. 29, 2015) (“Allocution”) at 12-13 (confirming Feng’s agreement with the government). In notifying me of Feng’s plea on the day it was entered, the government wrote that it “persists” in the .pending . Application, “but in view of the guilty plea, no longer requests expedited treatment.” DE 22.

*348Because the desire to secure potential evidence for Feng’s trial was the only basis for seeking Apple’s assistance that the government had identified up to that point, see Govt. II at 3 (“[t]he government seeks evidence relevant to a defendant’s guilt in a federal criminal case”), I promptly directed the government to explain why the Application was not moot. Order dated Oct. 30, 2015. The government responded that same day. It noted that Feng has yet to be sentenced, and that his case therefore remains open — although it did not attempt to explain how any information on the iPhone might alter the advisory sentencing guidelines range that would apply based on factors, including the amount and type of drugs involved in the offense, that the parties agreed the court could take into account. See DE 25 at 2; Allocution at 14-16. In addition to relying on the continuing potential need for evidence against Feng, the government also proffered a new theory: it noted that “Feng pleaded guilty to a narcotics conspiracy, and the government’s investigation into that conspiracy is ongoing. The underlying search warrant authorizes the government t'o seize evidence relating to Feng ‘and others,’ including ‘customers’ and ‘sources of drugs.’ ” DE 25 at 1 (quoting Application, Ex. A, Attachment B).6

For several months after Feng’s plea and the government’s letter, this case progressed no further. On February 12, 2016 — apparently unprompted by any development in this case, but just as apparently, in hindsight, reacting to developments elsewhere — Apple filed a letter in response to the government’s submission about the procedural viability of the Application in light of Feng’s plea. Apple eschewed comment on whether the government’s ongoing hunt for unindicted others, or the prospect of Feng’s sentencing, sufficed to keep the controversy alive. Instead, Apple alluded to “additional requests similar to the one underlying the case before this Court” and the fact that it has “been advised that the government intends to continue to invoke the All Writs Act in this and other districts in an attempt to require Apple to assist in bypassing the security of other Apple devices in the government’s possession.” DE 26 (letter dated Feb. 12, 2016) at 1. Based on those similar requests and the anticipation of further motions under -the AWA, Apple asserted that this matter “is not moot because it is capable of repetition, yet evading review.” Id. at 2 (citing United States v. N.Y. Tel. Co., 434 U.S. 159, 190 n. 6, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977)).

I recognized that while Apple’s letter identified a sound legal theory, it did not supply a sufficiently particularized factual basis for applying it in this case. Moreover, it was apparent that those unreported facts might bear on a number of legal issues about which the parties had disagreed at oral argument. I therefore directed Apple to provide, among other things, specific details of the requests it had received from the government during the pendency of this action, the position Apple had taken in response, and the re-*349suits of those requests. See Order dated Feb. 16, 2016. Although I did not require a response until March 1, 2016, Apple supplied the requested information the next day. DE 27 (letter dated Feb. 17, 2016). In that response, Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016. Id. at .2. In each, Apple has. been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the. passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected. Id. None of those cases has yet been finally resolved, and Apple reports that it has not to date provided the requested assistance in any of them. Id. at 2-3.

In addition to the nine , new cases described above, Apple also reported that as recently as February 16, 2016, shortly after my own order of the same date, the United States District Court for the Central District of-California had entered an ex parte order under the AWA- directing Apple -

to perform even more burdensome and involved engineering than that sought in the case currently before this Court— i.e., to create and load Apple-signed software onto the subject iPhone, device to circumvent the security and anti-tampering features of the device in order to enable the government to hack the pas-scode to obtain access to the protected data contained therein.

Id. at 1 (citing DE 27-1 (copy of 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, No.) (the “California” action), Order Compelling Apple, Inc. to Assist Agents in Search (C.D.Cal. Feb. 16, 2016)). On February 22, 2016, the government confirmed that Apple’s description of the recent requests could properly be filed on the public docket without jeopardizing any pending criminal investigation; in doing so, it noted the existence of yet one more case in which a court has ordered Apple to help the government bypass the passcode security of a locked device.. ,-DE 28. This matter is therefore, one of =a dozen pending cases in which the goyernment and Apple disagree as to the court’s authority to command Apple to assist the government in defeating the passcode security of devices Apple has manufactured.7

II. Discussion

A. Mootness.

-As a threshold matter, I agree with the government that its Application is not moot as a, result of Feng’s guilty plea. Whether the government will ever actually use any information it may find on Feng’s phone either to litigate the sentencing phase of Feng’s prosecution or to identify and prosecute the coconspirators, customers, and suppliers the government is pursuing, is ultimately of no moment. The government enjoys the prerogative to conduct lawful investigations into suspected criminal activity as .it sees fit, and in this case it chooses to search for evidence on Feng’s iPhone notwithstanding the fact that Feng’s guilt has been established. Having made that choice, it is free to take the position it does here, and a ruling on the Application will therefore resolve a live dispute about whether Apple must unwillingly be compelled- to provide the assis*350tance the government seeks. The matter is therefore not moot.8 -

B. The All Writs Act

For as long as this nation has had courts established by Congress pursuant to Article III of the Constitution, those courts have been endowed with- broad statutory authority to ensure they could effectively carry out the duties of an independent judiciary by issuing the orders necessary to do so — even if Congress had not had the foresight to create all of the procedural mechanisms tfiat might be required. As initially enacted by the First Congress in 1789, the AWA provided: -

That all the before-mentioned cóurts of the United States, shall have power to issue writs of scire facias,' habeas corpus, and all other writs not .specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.

Judiciary Act of 1789, 1 Stat. 73, § 14 (Sept. 24, 1789); see id. §§ 1-5 (establishing the courts mentioned in Section 14). That language has been amended only twice in the succeeding centuries, and never in any substantive way. In 1948, when Congress codified federal criminal law in Title 18 of the United States Code,’ it rendered the statute’s text in a more modern style by removing the reference to two specific common law writs, it updated the language to reflect the broader array of federal courts then in existence, it expanded>“necessary” to “necessary or appropriate”,- and it decided (for reasons that I cannot imagine have -any impact on this case) to-switch the order of-words “principles” and “usages”:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions agreeable to the usages and principles of law.

80 Pub.L. 772, 62 Stat. 683, 944 (June 25, 1948). A year later, Congress merely inserted the word “and” before the word “agreeable”. See 81 Pub.L. 72, § 90, 63 Stat. 89, 102 (May 24, 1949). Thus, as currently formulated, the AWA provides, in pertinent part:

The Supreme Court and-all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

28 U.S.C. § 1651(a).

The plain text of the statute thus confers on all federal courts the authority to issue orders where three-requirements are satisfied: ...

1. issuance of the writ must be “in aid of’ the issuing court’s jurisdiction;

2. the type of writ requested must be “necessary or appropriate” to provide such aid to the issuing court’s jurisdiction; and

3. the issuance of, the writ must be “agreeable to the usages and principles of law.”

*351If an application under the AWA meets all three of. those requirements, the court “may” issue the- requested writ in the exercise of its discretion — but it is never required to do so. See, e.g., Application of U.S. in Matter of Order Authorizing Use of a Pen Register, 538 F.2d 956, 961 (2d Cir.1976), rev’d on other grounds, United States v. N.Y. Tel. Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977); Morrow v. District of Columbia, 417 F.2d 728, 736 (D.C.Cir.1969); Paramount Film Distributing Corp. v. Civic Center Theatre, Inc., 333 F.2d 358, 360 (10th Cir.1964); Chemical & Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir.1962). A court deciding whether to take such discretionary action should consider three additional factors:

1. the closeness of the relationship between the person or entity to whom the proposed writ is directed and the matter over which the court has jurisdiction;

2. the reasonableness of the burden to be imposed on the writ’s subject; and

3. the necessity of the requested writ to aid the court’s jurisdiction (which does replicate the second statutory element, despite the overlapping language).

See N.Y. Tel. Co., 434 U.S. at 174-78, 98 S.Ct.'364.

As set forth below, I conclude that in the circumstances of ..this case, the government’s application does not fully satisfy the statute’s threshold requirements: - although the government easily satisfies the statute’s first two elements, the extraordinary relief it seeks cannot be considered “agreeable to the usages and. principles of law.” In arguing to the contrary, the - government posits a reading of the latter phrase so' expansive — and in particular, in such tension with the doctrine of separation of powers — as to cast doubt on the AWA’s constitutionality if adopted. Moreover, I further conclude that even if the statute does apply, all three discretionary factors weigh against issuance of the requested writ, and- that the Application should therefore be denied as a matter of discretion even if it is available as a-matter of law.

C. Statutory Requirements

1. Aid of Jurisdiction

Controlling case law conclusively demonstrates that the government seeks relief that is in aid of this court’s jurisdiction for purposes of the AWA. To be sure, Justice Stevens, in a dissenting opinion in N.Y. Tel. Co. (reflecting the views of himself and Justices Brennan, Marshall, and Stewart), persuasively explained the important distinction between the judiciary’s interest in authorizing á search and the executive’s wholly different agenda in using that authority to gather evidence — and •simultaneously demonstrated that the casé law interpreting the AWA had consistently reflected that distinction. See N.Y. Tel. Co., 434 U.S. at 186-90, 98 S.Ct. 364 (Stevens, J., dissenting); id. at 178, 98 S.Ct. 364 (Stewart, J., concurring in part and dissenting in part) (joining Part II of Justice Stevens’ dissent).

The N.Y.'- Tell Co. majority, however, decisively rejected the dissenters’ arguments:

The dissent’s attempt to draw a distinction between orders in aid of a court’s own duties and jurisdiction and orders designed to better enable a party to effectuate his rights and duties ... is specious. Courts normally exercise their jurisdiction only in order to protect the legal rights of parties. In Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), for example, the production of the federal-prisoner in-court was required in order to enable him to effectively present his appeal which the court had jurisdiction to hear. Similar*352ly, in Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), discovery was ordered in connection with a habeas corpus proceeding for the purpose of enabling a prisoner adequately to protect his rights. Here, we have held that Fed. Rule Crina. Proc. 41 provided the District Court with power to authorize the FBI to install pen registers. The order issued by the District Court compelling the Company to provide technical assistance was required to prevent nullification of the court’s warrant and the frustration of the Government’s right under the warrant to conduct a pen register surveillance, just as the orders issued in Price and Harris were necessary to protect the rights of prisoners.

Id. at 175 n. 23, 98 S.Ct. 364. Thus, regardless of the persuasiveness of any argument to the contrary, I am constrained to conclude that, as a general matter, it would normally be in aid of the court’s jurisdiction to order Apple to assist the government in executing a valid warrant to search Feng’s device.

Further, the fact that the warrant to be enforced expired long before the government sought to compel Apple’s assistance in executing it does nothing to extinguish the court’s jurisdiction. Although the general rule is that the government must execute a search warrant no more than fourteen days after its issuance, Fed.R.Crim.P. 41(e)(2)(A)(i), in the context of a warrant to seize electronic storage media such as Feng’s device, that time limit “refers to the. seizure or on-site copying of the media ,.. and not to any later off-site copying or review.” Fed.R.Crim.P. 41(e)(2)(B), Accordingly, ordering Apple to help the government bypass the passcode security on Feng’s device would be in aid of this court’s jurisdiction for purposes of the AWA.

2. Necessary or Proper

I likewise readily conclude that the requested order to Apple is “necessary or appropriate” within the meaning of the AWA. “Indeed, ‘[ujnless appropriately confined by Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.’” N.Y. Tel. Co., 434 U.S. at 172-73, 98 S.Ct. 364 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 273, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).9

3. Agreeable to the Usages and Principles of Law

The question whether the AWA permits the relief sought here thus re*353duces to whether it is “agreeable to the usages and principles of law” to compel Apple — a private party with no alleged involvement in Feng’s criminal activity — to perform work for the government against its will. Federal case law offers little if any guidance on how to understand that term in the context of this case.10 I therefore consider this aspect of the statute in the context of case law that more generally discusses the AWA’s overall furiction as a “gap filler” — that is, a source of interstitial authority that renders it unnecessary for Congress to anticipate every circumstance in which a federal court might properly act to vindicate the rights of parties before it. See, e.g., Harris, 394 U.S. at 300, 89 S.Ct. 1082 (“the purpose and furiction of the All Writs Act to supply the courts with the instruments needed to perform • their duty”) (citations omitted); . Michael v. I.N.S., 48 F.3d 657, 669 (2d Cir.1995) (“[T]he scope of the all writs provision confine[s] it to filling the- interstices of federal judicial power when these gaps threaten['] to thwart the otherwise proper exercise of federal courts’ jurisdiction.”) (quoting Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 41, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985)).

The limits of such gap-filling authority are easily discerned. At one end of the spectrum, the AWA cannot be interpreted to empower courts to do something that another statute already authorizes (but that might have threshold requirements that cannot be satisfied .in the circumstances of a particular case). See Pennsylvania Bureau of Correction, 474 U.S. at 43, 106 S.Ct. 355. At the other end, the government allows that a court cannot rely on the AWA (or, presumably, anything else) to issue an order that is explicitly or implicitly prohibited under a federal statute. See Govt. Ill at 7.

■ The gap between those two poles is large indeed, and the crux of Apple’s dispute with the government about the meaning of the AWA’s requirement that a writ be “agreeable to the usages and principles of law” is whether the statute fills all of that gap, as the government contends, or only some of it. In particular, unlike the government, Apple contends that a court order that accomplishes something Congress has considered but declined to adopt — albeit without explicitly or implicitly prohibiting it — is not agreeable to the usages and principles of law. See Apple II at 4; Apple III at 4. As explained below, I *354agree. -Before discussing that matter, however, I first, briefly- consider how this-case would come out if, instead of rejecting the government’s 'Understanding of the AWA’s gap-filling function, I adopted it. Even under -that reading of the law, I-believe Apple , has the better argument— both because it is arguable that CALEA11 explicitly absolves a company like Apple of any responsibility to provide the-assistance the government, seeks here and also because even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute.does not affirmatively prescribe.

a. CALEA

i. The Statute’s Purpose and Text

Congress enacted CALEA in 1994 to address its .concern that “new and emerging telecommunications technologies pose problems for law enforcement^]” U.S. Telecom Ass’n v. F.C.C., 227 F.3d 450, 454 (D.C.Cir.2000) (quoting H.R. rep. No.103-827 (“CALEA House Report”), pt. 1, at 14 (Í994)). It designed the statute “to .preserve the government’s ability, pursuant to court order or other lawful authorization, to intercept communications involving advanced technologies such as digital or wireless transmission. modes, or features and services such as call forwarding, speed dialing and conference calling, while protecting the privacy of communications and without impeding the introduction of new technologies, features, and services[.]” Id. (quoting CALEA House Report at 9).12

As part of its effort to ensure that the law would not stem technological progress, the - legislature included several provisions exempting certain kinds of entities from the more general requirement to assist law enforcement in the execution of court orders authorizing various forms of electronic surveillance. These “Limitations” on CALEA’s scope, 47 U.S.C. § 1002(b), fell into three ..categories. First, Congress limited the ability of law enforcement to prescribe or constrain the services communications companies could offer their customers and the equipment and systems used to market them:

Design of features and systems , configurations. This subchapter. does not authorize any law enforcement agency or office

(a) to require any- specific design, of equipment, facilities, services, features, or system configurations, to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services;

(b) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.

47 U.S.C. § 1002(b)(1).

Second, Congress explicitly exempted certain types of businesses from the statute’s- obligations to assist law enforcement:

*355Information services; private networks and interconnection services and' facilities.

The requirements of subsection (a) of this section do not apply to—

(A) information services; or

(B) equipment, facilities, or services that support the transport or switching of communications for private networks or for the sole purpose of interconnecting telecommunications carriers.

Id. § 1002(b)(2).

Finally, Congress largely (but not completely) exempted from CALEA’s general requirement of private assistance to law enforcement a requirement that businesses help agents bypass any encryption that might shield communications from .surveillance:

Encryption. A telecommunications carrier shall not be responsible for decrypting, or ensuring the government’s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary'to decrypt the communication.

Id. § 1002(b)(3)!13

ii. Application to Construction of the AW A

Both the government and Apple,agree' that CALEA does not compel a private company such as Apple to provide the kind of assistance the government seeks here. See Govt. II at 22';' Apple II at 5. They disagree as to why that is so: the government contends that CALEA simply has nothing to say on the matter, while Apple argues that the omission reflects a legislative choice. As explained below, Apple’s argument has more merit.

' The government suggests that CALEA imposes duties on telecommunications carriers only with respect to what it calls “data ‘in motion’ ” and then adds that “[b]y contrast, this case involves evidence already stored on a cell phone (data ‘at rest’).” .Govt. II at 22; see also Govt. Ill at.9-10.14 From there, it argues that the statutory language exempting “information services” from comparable duties is irrelevant, regardless of whether Apple qualifies as such a service, because the information it seeks to seize from Feng’s iPhone is data “at rest.” See Govt. II at 22 (“CA-LEA is entirely inapplicable to the present dispute”).

The proposition that CALEA makes a distinction between data “at rest” and “in motion” is largely correct as far as it goes, but ultimately misses the point. Even if Congress did not in any way regulate data *356“at rest” in CALEA,15 it plainly could, and did, enact such legislation elsewhere. Bee, e.g., 18 U.S.C. § 2703(f)(1) (requiring “[a] provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, [to] take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process”). Thus, long before the instant Application was filed, Congress enacted legislation to prescribe the private sector’s duties to assist a wide variety of law enforcement investigations — relating to data both “in motion” and “at rest.” Those laws defined the extent to which all sorts of service providers had such duties: telecommunications service providers, information service providers, and the providers of wire and electronic communications. None of those laws imposed any obligation on Apple to provide the assistance at issue here, and in particular, CALEA expressly stated that the assistance requirement did not apply to “information services.” 47 U.S.C. § 1002(b)(2)(A).16

The latter point is pertinent because, as Apple persuasively argues, “Apple is substantially engaged in the provision of ‘information services’ as that term is defined under CALEA, and thus could be considered an information services provider.”

Apple III at 1 (citing 47 U.S.C. § 1001(6)). As Apple notes:

Under CALEA “information services” means the “offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications,” and “includes a service that permits a customer to retrieve stored information from, or file information for storage in, information storage facilities; electronic publishing; and electronic messaging services.” [47 U.S.C.] § 1001(6).

Apple is substantially engaged in developing and offering products that provide such capabilities. For example, Apple’s iTunes service allows customers to purchase, store, and access music, movies, television shows, games and apps via an Internet-connected Apple device, such as an iPhone[.] iTunes thus constitutes an “information service” under CALEA by providing “a capability for ... acquiring, storing ... [and] retrieving ... information via telecommunications.” Id. Similarly, iMessage allows Apple customers (connected over the Internet) to communicate by messages sent and received via their iPhone[.]

Apple III at 1-2.

CALEA thus prescribes for telecommunications carriers certain obligations with re*357spect to law enforcement investigations that it does not impose on a category of other entities — describe^ .as “information service providers” — that easily encompasses Apple. Thus, as Apple argues with some justification, “the bounds of manda: tory law enforcement assistance were drawn by CALEA, and drawn in such a way to exclude the relief the government seeks.” Id. at 4.

To be sure, CALEA by itself has limits that render that one statute less than comprehensive. But considered together with other statutes prescribing the extent to which law enforcement may secure access to a wide array of data — both “in motion” and “at rest” — as well as the obligations of some private, entities but not others to provide affirmative assistance to such investigations, the statute is easily seen as part of a comprehensive legislative scheme. The absence from that comprehensive scheme of any requirement that Apple provide the assistance sought here implies a legislative decision to prohibit the imposition of such a duty.17 Thus, even under the government’s reading of the AWA, -I would conclude that while the matter is a close call, the Application seeks an order that is not “agreeable to the usages and principles of law.”

b. Statutory Construction

If the best reading of CALEA produces a conclusion that it prohibits the relief the government seeks here, then the Application must be denied even under the government’s understanding of what it means for a judicial order to be “agreeable to' the usages and principles of law.” But if CA-LEA, considered in the context of a larger statutory scheme, does not erect such a barrier to relief on its own terms, then resolution of the Application, turns on whether the gap in laws that the AWA fills is, as the government argues, the entire space between authorizing statutes and legislative prohibitions or if, as Apple would have it, it only reaches to such legislative powers as Congress has not considered and either adopted or rejected. As explained below, I- conclude that Apple’s position is more consistent than the government’s with thé rule of statutory ■construction that requires giving meaning to all statutory words and clauses as well as the rules prohibiting interpretations that produce absurd results or are of suspect constitutionality.

First, as a matter of technical statutory construction, I can find no way to read the statute in a way that gives the required independent meaning to,, three distinct terms in the AWA — “usages”, “principles”, and. “law” — that conforms to the government’s, view of the statute. See, e.g., Duncan, 533 U.S. at 174,121 S.Ct. 2120 (courts have a “duty to give effect, if possible, to every clause and word of a statute”) (quoting Menasche, 348 U.S. at 538-539, 75 S.Ct. 513); United States v. Nordic Vill. Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (“a statute must, if possible, be construed in such fashion that every word has-some operative effect”); Am. Civil Liberties Union v. Clapper, 804 F.3d 617, 623 (2d Cir.2015) (courts “must ... strive to avoid interpretations of a statute that would render any phrase or *358provision superfluous”) (citing TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001)).

“[A]greeable to” means, in essence, “consistent with.” See, e.g., Webster’s Third New International Dietionary of the English Language Unabridged at 43 (Merriam-Webster 2002) (defiliing'“agreeable” to mean, among other things, “in harmony-or keeping:- consistent, -consonant”). Congress could easily have written the AWA to mean what the ¡government says it means simply by requiring that a court’s orders under the-statute must be “agreeable to the law” — because any action not prohibited by law is, by definition, agreeable to the law.18 But the AWA requires an order issued under its aegis to be agreeable not merely to some part of the entire body of law, but to the law’s “usages” and “principles” — which must mean something else. The most natural reading gives meaning to the whole phrase by limiting the permissible orders to those that not only fail to violate legislative prohibitions, but that also- are consonant with both the manner in which the laws were-developed (that is, the “principles” that the laws reflect) and the manner in which the laws have been interpreted and implemented (that is, the “usages” of the various laws). Others may propose plausible alternative interpretations of “agreeable to the usages and principles of ■law.”19 But-whatever each of its words may mean'in isolation, the rules of statutory construction compel me to conclude that their meanings are distinct — and the government’s preferred reading of the AWA does not permit that.

Second, the implications of the government’s position are so far-reaching — both in terms of what it would allow today and what it implies about Congressional intent in 1789 — as to produce impermissibly absurd résults. See, e.g., United States v. Dauray, 215 F.3d 257, 264 (2d Cir.2000) (“A statute should be interpreted in a way that avoids absurd results.”); United *359 States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (“absurd results are to be avoided”).

At the heart of the government’s reading is the assuredly correct observation that there are any number of ways in which Congress may fairly be said to have considered legislation' that does not result in the enactment of legislation, and that as a result the only practical way to discern what is'agreeable to the usages and principles of law from what is not is to draw a bright line around what Congress has prohibited — either explicitly or implicitly via the omission of authority from a comprehensive legislative scheme. See Govt. II at 24; Tr. at 15, 37. I agree with the government that “Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction.” Zino Davidoff v. CVS, 571 F.3d 238, 243 (2d Cir.2009) (quoting Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994)) (quoted in Govt, II at 24). But the choice is not quite so binary as the government implies; a reliance on outright prohibition is not the sole -alternative to the chaos of attributing significance to mere legislative inaction. As this case makes clear, the record available to a court considering an application under the AWA will likely have a wealth of information beyond mere congressional inaction — including an array of legislative proposals and hearings that provide a stronger basis for the inferences to be drawn from the ultimate absence of enacted legislation.

As a threshold matter, I respectfully disagree with the government’s view of what is and is not practical.' The duty of faithful adherence to statutory text does not relieve the courts of the frequent need to make judgments about legislative intent, nor does it restrict them to only such interpretive tools as a dictionary may provide.20 There is no reason that a judge, ably guided by competent counsel for adversarial parties as I am here, cannot compare a proposed order under the AWA with the surrounding body of pertinent laws to determine how consonant the two maybe.21

*360Beyond its unduly pessimistic assumptions about a court’s practical ability to properly apply the “usages and principles” clause unless strictly constrained, the government’s construction of the AWA produces absurd results in application. If, for example the President sent to Congress a bill explicitly authorizing a court to issue the kind of order the government seeks here, and if every single member of the House and Senate were to vote against the enactment of such a law citing the kinds of data security and personal privacy concerns that Apple now embraces, the government would nevertheless describe the order sought here as permissible because Congress had merely rejected the bill— however emphatically, and however clear its reasons for doing so — rather than affirmatively passing legislation to prohibit the executive branch’s proposal. Yet in such circumstances, it would be absurd to posit that the authority the government sought was anything other than obnoxious to the law.22

An even starker illustration of the absurdity the government’s construction produces is that it does not allow a court to deem an action beyond the AWA’s reach even if it is an exercise of authority that had formerly been available under a statute that Congress elected to repeal because it was persuaded on policy grounds to retract such authority from the executive. Thus, for example, if communications service providers were to persuade Congress that CALEA had imposed unreasonable burdens on them that threatened their ability to remain in business, Congress could make the choice to repeal that law — -thereby removing the statutory obligation to provide certain types of assistance to law enforcement. And yet in the absence of a statute affirmatively prohibiting the government from requiring a company to provide such assistance, the government would read the AWA to nevertheless allow a court to order those same companies to provide precisely the same assistance to law enforcement that Congress had decided no longer to compel.

In short,'whatever else the AWA’s “usages and principles” clause may be intended to accomplish, it cannot be a means for the executive branch to achieve a legislative goal that Congress has considered and rejected. But because such rejection can take many forms, only one of which (and arguably the least likely in most circumstances) is outright prohibition, the government’s argument here is manifestly irreconcilable with the statute.

The government’s position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law — which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, *361so long as it has not affirmatively outlawed it — would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress’s superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction.'

The AWA was enacted as part of the Judiciary Act of 1789, which Justice O’Connor has described as “the last great event in our Nation’s founding” and part of “the triad of founding documents, along with the Declaration of Independence and the Constitution itself[.]” Sandra Day O’Connor,- The Judiciary Act of 1789 and the American Judicial Tradition, 59 U. Cin. L.Rev. 1, 3 (1990); see also Dimitri D. Portnoi, Resorting to Extraordinary Writs: -How the All Writs Act Rises to Fill the Gaps in the Rights of Enemy Combatants, 83 N.Y.U. L.Rev. 293, 296 (2008) (quoting same and providing further discussion of the AWA’s importance). It is no coincidence that an act of such foundational importance, and so essential to the implementation of the constitutional scheme- of a government of limited powers carefully allocated among three separate branches, was enacted during the First Session of the First Congress — because so many of that legislature’s members had themselves taken part in creating .the Constitution itself. Indeed, more than half of the delegates to the Constitutional Convention who signed the Constitution (as well as several dozen delegates to the various state ratifying conventions) were involved in the enactment of Judiciary Act of 1789-.23

It is wholly implausible to suppose that with so many of the newly-adopted Constitution’s drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document’s very first substantive mandate: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow. It is a reading that thoroughly undermines both the legislature’s- own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers. See, e.g., Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (”[T]he separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.... Madison ... said: ‘No political truth is certainly of *362greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty.’ ”) (quoting The Federalist No. 47, p; 324 (JY Cook¿ ed.1961); case citations omitted).

The proposition that the government’s interpretation of the ÁWA produces such a violation of the separation-of-powers doctrine is not simply a matter of taking an argument to a speculative, albeit logical, conclusion. To the contrary, it reflects what is going on right now, in this case. The Application before this court is by no means singular: the government has' to date successfully invoked the AWA to secure Apple’s compelled assistance in bypassing the passcode security of Apple devices at least 70 times in the past, see Tr. at 8; it has pending litigation in a dozen more cases in which Apple has not yet been forced to provide such assistance; and in its most recent use of the statute it goes so far. as to contend that a court— without any legislative authority other than the AWA — can require Apple to create a brand new product that impairs the utility of the products it is in the business of selling. It is thus clear that the government is relying on the AWA as a source of authority that is legislative in every meaningful way: something that can be cited as a basis for getting the relief it seeks in case after case without any need for adjudication of the particular circumstances of an individual case (as the arguments that the government relies on here to justify entering an AWA order against Apple would apply with equal force to any instance in which it cannot bypass the pas-scode security of an Apple device it has a warrant to search),24

It is also' clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking. Indeed, on the very same day that the government filed the ex parte Application in this case (as well as a similar application in the Southern District of New York, see DE 27 at 2), it made a public announcement that after months of discussion about the need to update CALEA ’ to provide the kind of authority it seeks herd, it would not seek such legislation. See James B. Comey, “Statement Before the Senate Committee bn Homeland Security and Governmental Affairs,” (Oct. 8,2015), https://www.fbi.gov/ news/testimony/threats-to-the-homeland (“The United States government is actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services. However, the administration is not seeking legislation at this time.”).

The government’s interpretation of the breadth Of authority the AWA confers on courts of limited jurisdiction thus raises serious doubts about how such a statute could withstand constitutional scru*363tiny under the separation-of-powers doctrine. It would attribute to the First Congress an anomalous diminishment of its own authority (to deny a request to increase the executive’s investigative powers it deemed inadvisable simply by declining to enact it) as well as an equally implausible intention to confer essentially unlimited legislative powers on the judiciary. Adopting that interpretation

would fly in the face of the doctrine of constitutional avoidance, which “allows courts to avoid the decision of constitutional questions” by providing “a tool for choosing between competing plausible interpretations of a statutory text; resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.”'

Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 808 (2d Cir.2015) (quoting Clark v. Martinez, 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005)) (emphasis in original); see also Clark, 543 U.S. at 380-81, 125 S.Ct. 716 (“If one of [two plausible statutory constructions] would raise a multitude of constitutional problems, the other should prevail — whether or not those constitutional problems pertain to the particular litigant before the' Court.”). I therefore reject the government’s interpretation of the AWA’s gap-filling function, and conclude that a judicial order that would confer authority that Congress has considered and decided not to enact is not “agreeable to the usages and principles of law.”

Applying that interpretation in this case compels the conclusion that the AWA does not authorize the relief the government seeks. In my initial Memorandum and Order in this case, I discussed at some length the history of Congressional consideration in the decades since CALEA’s enactment of updates to the statute that would confer — or withhold — the kind of authority at issue here to compel private actors to assist the government in technologically complex investigations. See 2015 WL 5920207, at *1-3.25 After reviewing that history, I concludéd that “the absence of any explicit statutory authority for the relief the government seeks cannot be attributed to a failure of legislators to consider such an enactment.” Id. at *3. Nothing in the subsequent submissions from the government or Apple suggests a basis for abandoning that conclusion. I therefore conclude that what the government seeks here is “to have the court give 'it authority that Congress chose not to confer.” Id. at *1 — and that, for the reasons explained above, granting such a request is not “agreeable to the usages and principles of law.” '

Accordingly, because the government’s Application fails to satisfy the AWA’s statutory requirements, I 'must deny the request for relief regardless of any analysis of the discretionary factors under N.Y. Tel. *364 Co. As discussed below, however, consideration of those factors would in any event lead to the same result.

D. Discretionary Factors

1. Closeness

a. Apple’s Relationship to Feng’s Criminal Activity

In N.Y. Tel. Co., the Supreme Court held that where there was probable cause to believe that a telephone company’s own property was “being employed to facilitate a criminal enterprise on a continuing basis[,]” and where the company was “ a highly regulated public utility with a duty to serve the public,” the company was not “so far removed from the underlying controversy that its assistance could not be permissibly compelled.” 434 U.S. at 174, 98 S.Ct. 364. I explained in the Memorandum and Order why it appeared that the circumstances of this case are materially different. See 2015 WL 5920207, at *5. After considering the later-submitted arguments from the government and Apple, I adhere to that view, and conclude that unlike the public utility in N.Y. Tel. Co., Apple is too far removed from Feng’s criminal conduct to have any obligation to assist the DEA’s investigation.

To the extent that Feng used his iPhone in committing crimes, he used his own property, not Apple’s. Unlike the telephone company in N.Y. Tel. Co., which owned the facility used for criminal communications, Apple has no ownership interest in anything that the record reveals Feng used to commit a crime. And unlike the telephone company — “a highly regulated public utility with a duty to serve the public,” 434 U.S. at 174, 98 S.Ct. 364— Apple is a private entity with no greater duty to serve the public than any other business.

The government argues that Apple’s relationship to Feng’s criminal activity is sufficiently close, notwithstanding those differences, because, while Feng owned the device itself, he merely licensed from Apple the iOS software on which it runs. See Govt. II at 13. But while the government ably demonstrates what the license forbade Feng from doing — he could not lawfully “rent, lease, lend, sell, redistribute or sublicense the iOS Software[,]” id. (quoting license agreement ¶ B(3)) — it does not explain the significance of that fact in determining the proximity of Apple’s relationship to Feng’s conduct. As far as I can discern from the record, Feng did not at any time “rent, lease, lend, sell, redistribute, or sublicense” Apple’s software; what he did “sell” or “redistribute” was methamphetamine — a course of conduct in which Apple was not involved. Nor does the record support an inference that Feng in any way used the licensed software itself — as opposed to the data it allowed Feng to store on the hardware Apple no longer owns — to facilitate his crimes; to the contrary the record contains an explicit description of the ways in which the government believes Feng used his iPhone to commit his crimes as well as the types of evidence the DEA agents expected to find on it. See Device Application ¶¶ 7-28 & Attachment B. Nothing in that description even remotely suggests that the licensed software played any meaningful role in Feng’s crime comparable to the role the telephone company’s property played in the crimes under investigation in N. Y. Tel. Co 26

*365■Ultimately, the government’s point is not that Apple in any way facilitated Feng’s criminal conduct, but rather that it reaps profits from selling devices (and leasing the software on which those devices run), to a vast group of consumers among whom there are inevitably some criminals. From that premise it draws the following conclusion: “Apple cannot reap the -legal benefits of licensing its software in this manner and then later disclaim any ownership or obligation to assist law enforcement when that same software plays a critical role in thwarting execution of a search warrant.” Govt. II at 13-14. That opinion may be perfectly defensible as moral precept (however-much it may be in tension with the legal system’s otherwise broad support for free enterprise), but-it has nothing to do with the pertinent legal inquiry.27. Apple had no involvement in Feng’s crime, and it has taken no affirmative action to thwart the government’s investigation of that crime (a matter discussed in greater detail below). Apple lawfully sold to Feng, as it sells to millions of law-abiding individuals and. entities (including the government itself), a product that can effectively secure its stored data for the protection of its owner.28 Feng used that device for criminal purposes and left it locked, and the government says it cannot open the lock without Apple’s help. Nothing in N.Y. Tel. Co. remotely suggests that in such circumstances,. Apple is so closely related to the crime under investigation that a court can order its assistance under the AWA,

b. Apple’s, Relationship to the Governments Investigation

The government alternatively posits that Apple is sufficiently dose to the *366underlying controversy for purposes of the AWA because its '“software now thwarts the execution of the search warrant” for Feng’s iPhone. Govt. II at 15. That formulation comes-after (but subtly reinterprets) an earlier quotation from the opinion in N.Y. Tel, Co. As the government notes, in arguing that the court has authority to grant relief under the AWA (as opposed to the distinct question of whether such authority should be exercised as a matter of discretion), ■

The Court held that “[t]he power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the orighial action or engaged jn wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, ... and encompasses even those who have not- taken any affirmative action to hinder justice.”

Govt. II at 11' (quoting N.Y. Tel. Co., 434 U.S. at 174, 98 S.Ct. 364).^ ;

There is no question that the court has the authority under the AWA to compel Apple — or anyone else for that matter — to take action regardless of .whether it was involved in the underlying criminal conduct, so long as it does-so “under appropriate circumstances.” N.Y. Tel. Co., 434 U.S. at 174, 98 S.Ct. 364. ‘But the proposition that Apple’s purported ability to “thwart” the government’s investigation renders it sufficiently close to the underlying controversy as to make such an order appropriate is ultimately unpersuasive. Apple is not doing* anything to keep law enforcement agents from conducting their investigation.- Apple has- not conspired with Feng to make the data on his device inaccessible.29 More importantly, perhaps, it has not even done what the telephone company did in N.Y. Tel. Co. — namely, it has not barred the door to its property to prevent law enforcement agents from entering and performing actions they were otherwise competent to undertake in executing the warrant for themselves.30

Indeed, the government’s complaint is precisely that Apple is doing nothing at all. If Feng had not engaged the passcode security oh his device, or if the government had - been able to secure an order compelling Feng to unlock the phone on pain of contempt saiictions, the government might well be in a position to seize the iPhone’s data without Apple’s assistance. See 2015 WL 5920207, at *5 & n.3.31 Thus, Apple is hot “thwarting” any*367thing — it is instead merely declining to offér assistance. There may well be some for whom the distinction between a third-party’s active obstruction of law enforce- ■ ment and its passive refusal to help is meaningless as a matter of policy. But it is hardly meaningless as a matter of legal analysis.32 In any event, the distinction is one that precludes a finding that Apple’s relationship either to Feng’s crime or to the governinent’s investigation of it is sufficiently similar to the telephone company’s corresponding role in N.Y. Tel, Co. as to justify an order compelling Apple’s assistance.33

*368c. “Minimum Contacts”

In its post-hearing brief, the government offered no new argument about what Apple has done that renders it close enough to Feng’s crime for purposes of N. Y. Tel. Co., but it did posit a new legal standard to apply in considering that discretionary factor. It suggests that all that is required is that Apple have “minimum contacts” — although to what, the government does not say. See Govt. Ill at 6. It wrests that suggestion from the wholly inapposite usage of the phrase in United States v. Int’l Brotherhood of Teamsters, 907 F.2d 277, 281 (2d Cir.1990). As explained below, the argument is unpersuasive.

As another court aptly summarized the nature of the dispute in Teamsters :

[T]he All Writs Act was used in Teamsters to remove state court litigation so as to aid in the enforcement of a district court’s order and to prevent repetitive and burdensome litigation and promote judicial economy, that result was necessary because a consent decree that had been in place for three years was threatened by collateral state lawsuits. The district court determined that an injunction was needed to protect the district court’s jurisdiction over the parties to the consent decree, and proceeded under the authority of the All Writs Act.

Nat’l Fuel Gas Supply Corp. v. 188 Acres of Land in Vill. of Springville, Cty. of Erie, State of New York, 186 F.Supp.2d 339, 345 (W.D.N.Y.2001).

Thus, in Teamsters, there was no question about whether the parties affected by the court’s use of an AWA order were too far removed from involvement in the underlying dispute — the question was instead whether the court had personal jurisdiction over those non-parties who were located outside of New York. See Teamsters, 907 F.2d at 281. Unsurprisingly, the court answered that question of personal jurisdiction by invoking the applicable constitutional standard for a court’s assertion of personal jurisdiction — the “minimum contacts” standard. See id. (citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Here, by contrast, the question is precisely what it was not in Teamsters: there is no dispute about the court’s personal jurisdiction over Apple, but there is a dispute about whether Apple is too far removed from involvement Feng’s conduct to be subject to an order under the AWA.

2. Burdensomeness

The Supreme Court acknowledged in N.Y. Tel. Co. that a court exercising its authority under the AWA may not impose “unreasonable burdens” on the subjects of its orders. 434 U.S. at 172, 98 S.Ct. 364. In explaining why compelling the telephone company to help the government install a pen register imposed no such unreasonable burden in that case, the Court wrote the following:

[I]t can hardly be contended that the Company, a highly regulated public utility with a duty to serve the public, had a *369substantial interest in not providing assistance. Certainly the use of pen registers is by no means offensive to it. The Company concedes that it regularly employs such devices without court order for the purposes of checking billing operations, detecting fraud, and preventing violations of law. It also agreed to supply the FBI with all the information required to install its own pen registers. Nor was the District Court’s order in any way burdensome. The order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations.

Id. at 174-75, 98 S.Ct. 364 (citations omitted).

The salient points that the Court highlighted as the basis for finding a lack of unreasonable burdens in N.Y. Tel. Co. are virtually all absent here. First, Apple is not a “highly regulated public utility with a duty to serve the public” — the government does not suggest that it is subject to greater regulation than other businesses, it is not a public utility, and it has a duty is to serve its shareholders rather than the public. Second, Apple has indeed contended that it is in its interest as a private company not to provide the assistance sought here: Apple seeks to succeed in a competitive market by being seen to assume “a leadership role in the protection of its customers’ personal data against any form of improper access.” Apple I at 4. Further, Apple claims to fear — reasonably or otherwise — that providing the requested assistance in the absence of clear legal authority (as I conclude is lacking) “could threaten the trust between Apple and its customers and substantially tarnish the Apple brand.” Id.

Third, unlike the pen register at issue in N.Y. Tel. Co., the assistance the government seeks here — bypassing a security measure that Apple affirmatively markets to its customers — is not something that Apple would normally do in the conduct of its own business and is, at least now, plainly “offensive to it.” N.Y. Tel. Co., 434 U.S. at 174, 98 S.Ct. 364.34 To be sure, Apple’s view of what it finds offensive appears to have changed since the days when it routinely voiced no objection to cooperating with AWA orders, and the government’s displeasure with that change is as understandable as it is vehement. But however late Apple may have come to its current view about the way it wishes to exercise its autonomy, the record offers no reason to question its sincerity.35

*370Fourth, again unlike the telephone company in N.Y. Tel. Co., which .“agreed to' supply the FBI with all the information required to install its own pen registers!,]” 434 U.'S. at 175, 98 S.Ct. 364, the record suggests that Apple has never offered the government the information needed to bypass an iPhone’s -passcode security on its own — and would never do so. To the contrary, Apple is clearly staking out the position that as a matter of protecting its customers’ privacy and data security (and as a matter of securing the benefits it derives from doing so), it does not want the government or anyone else to have access, to the information the government would compel it to use to provide the requested assistance at issue here. Apple has explicitly stated. that it will comply with a lawful court order to assist in bypassing the passcode security on Feng’s iPhone, see Tr. at 10, but, it has neyer hinted that it would prefer to simply let the, government have the information necessary to do so. " ,

Fifth, - yet again unlike . the telephone company in N.Y. Tel. Co., which could install a pen register “with ... minimal effort ... and no disruption to its operations!,]” 434 U.S. at 175, 98 S.Ct. 364, the record demonstrates that bypassing the passcode security of just one iPhone “diverts man hours and hardware and software from Apple’s normal business-operations.” Apple I at 3. And while that burden by - itself is not substantial in the case of “a single device in good working order, running an operating system earlier than iOS 8,” id. the record of this 'case makes clear that the burdens the government seeks to impose on Apple under the authority of the AWA are-not nearly so limited. The government has already secured such assistance at least 70 times before filing the instant petition, it has a dozen more such ‘ applications pending, and it clearly intends to continue seeking assistance that is similarly burdensome— if not far more - so — for the foreseeable future. ■ In this context, the government’s assurance that “any cumulative burden is minimal and likely to decrease with regard to the type of relief requested here[,l” Govt. II at 16 (emphasis added) is particularly unconvincing: the government, predicates its argument on the fact that devices using pre-iOS 8 software are becoming an ever smaller slice of Apple’s market. See id. But that argument omits the faqt that the advent of more recent operating -systems has done nothing to slow the. government’s requests— instead, the government continues to seek orders compelling Apple’s assistance in bypassing the passcode security of more recent models and operating systems, notwithstanding the fact that such requests are more - burdensome than the one pending here.36

*371Thus, the government’s argument that the burdens an AWA -order here would impose on Apple are as negligible as those imposed on the telephone company in N.Y. Tel. Co. cannot withstand scrutiny. The government’s remaining . 'arguments against a finding of burden -are similarly unpersuasive. The government essentially argues that having reaped the -benefits of being an American company, it cannot claim to -be. burdened by being seen to assist the government.. See Govt,- II at 19 (noting the “significant legal, infrastructural, and political benefits” Apple derives from being an American company, as well as its “recourse to the American courts” and to the protection of “American law enforcement ... when it believes that it has been the victim of a crime”); id. at 19-20 (“This Court should not entertain an argument that fulfilling basic civic, responsibilities of any American citizen or company ... would ‘tarnish’ that person’s or company’s reputation.”).

Such argument reflects poorly on a government that exists in part to safeguard the freedom of its citizens — acting as individuals or through the organizations they create — to make autonomous choices about how best to balance societal and private interests in going about their lives and their businesses. The same argument could be used to condemn with equal force any citizen’s chosen form of dissent. All American citizens and companies “derive significant legal, infrastructural, and political benefits from [their] status [as such,]” id. — but that cannot mean that they are not burdened in a legally cognizable way when forced unwillingly to comply with what they sincerely believe to be an unlawful government intrusion.37

*372Similarly, the government’s contention that “the burden associated with compliance with legal process is measured on the direct costs of compliance, not on other more general considerations about reputations or the ramifications of compliance[,]” id. at 19, is irreconcilable with the opinion in N.Y. Tel. Co. itself. The Court in that case did not just cite the lack of financial burden on the telephone company; instead, it took pains to refute the lower appellate court’s stated concern about the “severe threat to the autonomy of third parties who for whatever reason prefer not to render such assistance.” 434 U.S. at 171, 98 S.Ct. 364. Indeed, part of its showing in that regard was the observation that the company’s installation of a pen register would not be “offensive to it” — an observation that would be wholly irrelevant, if not counter-productive, to a decision intended to establish that the only cognizable burdens under the AWA are financial. Finally, the government makes no effort to explain why cognizable burdens should be so limited: as the Court explained in N.Y. Tel. Co., the AWA does not empower a court to impose any burdens that are “unreasonable” — and it said nothing to suggest that only financial burdens could prove unreasonable.

Finally, I return to the point that the Supreme Court addressed in reversing the Second Circuit’s decision in N.Y. Tel. Co.: the concern that an AWA order compelling a private party to provide service to the government the non-party finds offensive would “pose a severe threat to [their] autonomy[.]” 434 U.S. at 171, 98 S.Ct. 364. As discussed above, the Court concluded that no such threat was posed in that case by the imposition of an obligation on a public utility to perform for the government a task that it would in any event perform in the pursuit of its own business. But the concern about whether the AWA,' as construed by the government, would confer on the judiciary an overbroad authority to override individual autonomy cannot be so easily avoided in this case. Nothing in the government’s arguments suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values to provide assistance to the government the court deems necessary.

To try to gauge that limit — and to see if one even exists — I deliberately asked the government at oral argument the provocative question noted above, see n.34 supra, about whether a court could invoke the AWA to force a drug maker to supply lethal, injection drugs notwithstanding the *373manufacturer’s conscientious, objection to capital punishment. See Tr. at 43-48. That the government had no ready answer at oral argument to a question it deemed so inflammatory was not surprising. But even in its post-hearing submission, the government offers nothing more than deflection: “Resolution of the death penalty hypothetical would depend on the particular law, facts, and circumstances if such a case were to present itself.” Govt, III at 5. That is undoubtedly true, but equally unsatisfactory. If the government cannot explain why ‘the authority it seeks here cannot be used, based on the same arguments'before this court, to force private citizens to commit what they believe to be the moral equivalent of murder at the government’s behest,. that in itself suggests a reason to conclude that the government cannot establish-a lack of. unreasonable burden.

If, as the government would have it, the only cognizable measure of an unreasonable burden in this ease is the extent to which Apple might have unreimbursed' financial costs arising directly from the work needed to bypass the passcode security on Feng’s iPhone, then granting the requested order would not impose an unreasonable burden. But the category of unreasonable burdens is not nearly so narrow, not even as described in the Supreme Court opinion on which the government primarily relies. Taking into account the several other burdens to which Apple objects — burdens that are no less real or cognizable simply because they are harder to quantify — I conclude that granting the government’s Application would impose an unreasonable burden on Apple.

3. Necessity .

The government contends that it cannot, successfully search Feng’s device without Apple’s assistance. See Govt. I at 1-2; Govt. Ill at 7 (“The government is unable to perform a safe passcode bypass on its own[.]”). If that assertion is true, the government may be entitled to relief under the AWA if it can satisfy the remaining statutory requirements and discretionary' factors. But if it is false — if the government has access to resources that would in fact allow it to vindicate this court’s jurisdiction without compelling Apple to take action it finds objectionable— that fact would weigh heavily against granting relief. As the movant, it is the government’s burden to establish the factual assertions upon which it claims to be entitled , to relief. I conclude that it has failed.to do. so because of the conflicting evidence in the record about the availability, from private, sources other than Apple, of technology that would allow the government to bypass the passcode security on Feng’s device.38

*374In its Application in this case, the government originally asserted that its agents cannot bypass the passcode security of an Apple iPhone. See Govt. I at 1-2. Two months earlier, however, in opposing a suppression motion in an unrelated criminal case in this district, the government said something quite different:

[T]he lack óf a passcode is not fatal to the government’s ability to obtain the records. That.is because [the Department of Homeland Security (“DHS”), Homeland Security Investigations (“HSI”) ] is in possession of technology that would allow its forensic technicians to override the passcode security feature on the Subject iPhone and obtain .the data contained therein. In other words, even if HSI agents did not have the defendant’s passcode, they would nevertheless have been able to obtain the records stored in the Subject iPhone using specialized software. ’The software works to bypass the passcode entry requirement and “unlock” the cellular ' telephone without having" to enter the code. Once the device is- “unlocked” all records in it can be accessed and copied.

United States v. Adamou Djibo, 15-CR-0088 (SJ), DE 27 at 5 (government’s letter to court dated July 9, 2015). At a hearing on the suppression motion in Djibo, the government presented the testimony of a DHS expert who testified that although the “IP-Box” technology on which the government relied was both “fairly new*’ and “finicky,” he and others had .succeeded in using that technology to bypass passcode security on some Apple devices, if not the precise kind seized from Djibo. See United States v. Djibo, — F.Supp.3d —, —, 2015 WL 9274916, at *6 (E.D.N.Y. Dec. 16, 2015).39

- In response to my questions at oral argument about the tension between the factual assertions the government had offered in the two cases, the government proffered yet a third. Specifically, the government wrote:

The government has consulted with the testifying agent in Djibo, who noted that the government’s ability to bypass the passcode on an iPhone is highly device-specific, and depends in part on the spe*375cific hardware and software in place. The investigators in this case have examined the possibility of using various third-party technologies, including the hacking tool referenced in Djibo, and determined that, in this case, using such technology on the Target Phone [ie., Feng’s iPhone] presents a non-trivial risk of data destruction. Specifically, the tool, which serially tests various pas-scodes until detecting the correct one, could activate the “erase data” feature of the iPhone and render the data in the Target Phone permanently inaccessible. By contrast, in this case, Apple has the unique ability to safely perform a pas-scode bypass on the Target Phone without risking such data destruction.

Govt. Ill at 8. In short, the government, having previously stated both that it cannot bypass an Apple’s passcode security without Apple’s help and that it can do so, now says that it depends — and that what it depends on is not just which device and which operating system is in question, but also on which government expert makes the attempt.

In Djiba, the result of that morass of conflicting statements was a finding that the government had failed to establish that it would inevitably have succeeded 'in bypassing the passcode. security on Djibo’s iPhone. Djiba, 151 F.Supp.3d 297 at -310-311, 2015 WL 9274916, at *11. That result does not remotely establish the proposition the government supports here — namely, that it is impossible for it to bypass the security of an earlier operating system without Apple’s help. What it does establish is simply that the government has made so many conflicting statements in the two cases as to render any single one of them unreliable. Because it is the government’s burden, as the movant seeking relief, to demonstrate a basis for granting its request, I necessarily conclude that it has failed to establish that the help it seeks from Apple is necessary for purposes of the test under N.Y. Tel. Ca. 40

III. Conclusion

In deciding this motion, I offer no opinion as to whether, in the circumstances of this case or others, the government’s legitimate interest in ensuring that no door is .too strong to resist lawful entry should prevail against the equally legitimate societal interests arrayed. against it here. Those competing values extend beyond the individual’s interest in vindicating reasonable expectations of privacy — which is not directly implicated where, as here, it must give way to the mandate of a lawful warrant. They include the commercial inter*376est in conducting a lawful business as its owners deem most productive, free of potentially harmful government intrusion; and the far more fundamental and universal interest — important to individuals as a matter of safety, to businesses as a matter of competitive fairness, and to society as a whole as a matter of national security — in shielding sensitive electronically stored data from the myriad harms, great and small, that unauthorized access and misuse can canse.

How best to balance those interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place .among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive. It would betray our constitutional heritage and our people’s claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789.41

Ultimately, the question to be answered in this matter, and in others like'it across the country, is not whether the government should be able'to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come. For the reasons set forth above, I conclude that it does not. The government’s motion is denied. ■■

SO ORDERED.