Apple and the FBI are facing off in court over an encrypted iPhone 5C that was used by San Bernardino shooter Syed Rizwan Farook. The phone stopped backing up to the cloud, which the investigators have already searched, several weeks before the Dec. 2 attack.
It’s unclear what, if anything remains on the phone, but the Justice Department says it has “reason to believe” that Farook used that iPhone to communicate “with some of the very people” he and his wife killed.
Apple and the government, however, are at odds over a court order that investigators got to compel Apple to help them circumvent the iPhone’s security systems. Right now, the phone is protected by a PIN code that the FBI doesn’t know — and trying to guess it could cause the phone’s data to be deleted.
The FBI wants Apple to write software that would give it unlimited attempts at the PIN with a computer program, but Apple’s answer is a hard no. In a motion to dismiss the court’s order, filed Thursday, the company says it has cooperated with investigators as much as it can, and this software request is dangerous, illegal and unconstitutional.
Here are five key quotes from the filing that outline Apple’s argument — plus one swipe at the FBI’s computer skills:
A Slippery Slope
The FBI says the custom-written software would be for this phone specifically. Apple doesn’t buy it:
“The government says: ‘Just this once’ and ‘Just this phone.’ But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts. … If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent.”
A Dangerous Precedent
“… compelling Apple to create software in this case will set a dangerous precedent for conscripting Apple and other technology companies to develop technology to do the government’s bidding in untold future criminal investigations. If the government can invoke the All Writs Act to compel Apple to create a special operating system that undermines important security measures on the iPhone, it could argue in future cases that the courts should compel Apple to create a version to track the location of suspects, or secretly use the iPhone’s microphone and camera to record sound and video.”
An Overreaching Court
The court order instructing Apple to comply cites the All Writs Act, which broadly permits courts to “issue all writs necessary or appropriate” and has been used to compel companies to assist law enforcement in investigations. But Apple says this request overreaches the court’s authority — that this particular court order is creating a new power, not using an existing one. Only Congress, by passing a new law, could make such a demand legal, Apple argues:
“[The All Writs Act] does not grant the courts free-wheeling authority to change the substantive law, resolve policy disputes, or exercise new powers that Congress has not afforded them. … Congress has never authorized judges to compel innocent third parties to provide decryption services to the FBI. Indeed, Congress has expressly withheld that authority in other contexts, and this issue is currently the subject of a raging national policy debate among members of Congress, the President, the FBI Director, and state and local prosecutors.”
A Tenuous Connection
The Supreme Court has previously found that the All Writs Act can be used to force a company’s cooperation, provided that the company was not “far removed” from the case in question. Apple argues it is, indeed, far removed:
“The All Writs Act does not allow the government to compel a manufacturer’s assistance merely because it has placed a good into the stream of commerce. Apple is no more connected to this phone than General Motors is to a company car used by a fraudster on his daily commute. … Indeed, the government’s position has no limits and, if accepted, would eviscerate the ‘remoteness’ factor entirely, as any company that offers products or services to consumers could be conscripted to assist with an investigation, no matter how attenuated their connection to the criminal activity. This is not, and never has been, the law.”
A Violation Of Constitutional Rights
“Under well-settled law, computer code is treated as speech within the meaning of the First Amendment,” Apple says.
Under some conditions, the government can force companies to make statements of various kinds. But Apple argues that in this case, given the uncertain value of what’s on the iPhone, the investigators failed to prove a compelling state interest in getting into the device and so lack a constitutional reason to compel Apple to speak — especially when the “speech” (aka code the company would write) is in direct opposition to Apple’s public stance in favor of encryption and security.
Apple also argues that the request violates the company’s Fifth Amendment right to due process:
” … the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from ‘arbitrary deprivation of [its] liberty by government.’ “
And As A Bonus … A “Shoulda Asked Sooner”
Apple also suggested that the FBI’s current problem is one of its own making — that federal investigators who lacked sufficient knowledge of Apple’s security systems blocked themselves from an easier way of accessing much of the phone’s data:
“Unfortunately, the FBI, without consulting Apple or reviewing its public guidance regarding iOS, changed the iCloud password associated with one of the attacker’s accounts, foreclosing the possibility of the phone initiating an automatic iCloud back-up of its data to a known Wi-Fi network …which could have obviated the need to unlock the phone and thus for the extraordinary order the government now seeks. Had the FBI consulted Apple first, this litigation may not have been necessary.”