The legal dispute between Apple and the FBI continues: the government has filed a response to Apple’s refusal to cooperate with a federal magistrate’s order instructing it to assist the FBI in circumventing the security features on an iPhone used by one of the San Bernardino shooters.
In their legal filings, Apple and the government face off on a number of issues. Apple says the government is using the court system to assert broad authority that hasn’t been granted by Congress; the government says Apple is overstating the wide-reaching security concerns and creating “warrantproof” devices.
Below, in the words of their own filings, are a few of the issues where the two parties most fiercely disagree:
Is Apple too far removed from the Farook case?
The magistrate judge’s order instructing Apple to cooperate with the FBI’s request relies on the All Writs Act, a 1789 law that courts have used to compel companies’ assistance in investigations. The All Writs Act, or AWA, can only be used if it’s not an unreasonable burden on the company, and if the company isn’t “too far removed” from the situation.
- Apple says its connection to the case doesn’t justify it being “drafted into government service”: “Apple is a private company that does not own or possess the phone at issue, has no connection to the data that may or may not exist on the phone, and is not related in any way to the events giving rise to the investigation.”
- The government argues that Apple has a “continued connection” to phones after they are sold: “Apple intentionally and for commercial advantage retains exclusive control over the software that can be used on iPhones, giving it monopoly-like control over the means of distributing software to the phones. … Having established suzerainty over its users’ phones—and control over the precise features of the phones necessary for unlocking them—Apple cannot now pretend to be a bystander, watching this investigation from afar.”
[In case you, like us, were thrown for a loop by the word “suzerainty,” it means the position or power of a suzerain, or feudal overlord.]
What about a possible future burden?
- Apple argues writing the software would pose an undue burden, particularly because its burden would be multiplied by future requests: “If Apple creates new software to open a back door, other federal and state prosecutors—and other governments and agencies—will repeatedly seek orders compelling Apple to use the software to open the back door for tens of thousands of iPhones.”
- The government says there’s no precedent for considering potential future burdens, and says only the burden of writing software for this phone should be considered: “By accumulating its hypothetical future burdens, Apple suggests that because so much criminal evidence is hidden on its warrant-proof iPhones, it should not be compelled to assist in gathering evidence related to the terrorist attack in San Bernardino. Apple is wrong.”
Is using the All Writs Act an example of judicial overreach?
- Apple also argues that this particular use of the AWA extends beyond precedent in a way that ought to be decided by Congress: “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. … The unprecedented order requested by the government … would preempt decisions that should be left to the will of the people through laws passed by Congress and signed by the President.”
- U.S. Attorneys respond … : “Congress intended for the Act to be broad and flexible, capable of rising to meet new obstacles to the courts’ lawful exercise of jurisdiction. The Act is not a judicial usurpation of congressional power, but rather an example of Congress’s reliance upon the courts’ sound discretion and close familiarity with specific facts to ensure that justice is done.” … and also argue this precise argument has been used before, and the nation’s highest court found it wanting: “In deciding New York Telephone, the Supreme Court directly confronted and expressly rejected the policy arguments Apple raises now. Like Apple, the telephone company argued: that Congress had not given courts the power to issue such an order in its prior legislation; that the AWA could not be read so broadly; that it was for Congress to decide whether to provide such authority; and that relying on the AWA was a dangerous step down a slippery slope ending in arbitrary police powers. … In the forty years since that decision, it has become clear that the Court was correct because those fears have proved unfounded.”
Could such software be reused?
- Apple: “Once the process is created, it provides an avenue for criminals and foreign agents to access millions of iPhones. And once developed for our government, it is only a matter of time before foreign governments demand the same tool.”
- The government: “As Apple well knows, the Order does not compel it to unlock other iPhones or to give the government a universal ‘master key’ or ‘back door.’ It is a narrow, targeted order that will produce a narrow, targeted piece of software capable of running on just one iPhone, in the security of Apple’s corporate headquarters.”
Could such a program be requested for other criminal cases in the future? Maybe, the FBI says, but it’s not relevant now: “future cases involving other iPhones will be decided on their specific facts.”
Does the magistrate’s order violate the First Amendment?
- Apple: “The code must contain a unique identifier ‘so that [it] would only load and execute on the SUBJECT DEVICE,’ and it must be “signed’ cryptographically by Apple using its own proprietary encryption methods.’… This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment.”
- The government: “There is reason to doubt that functional programming is even entitled to traditional speech protections. …To the extent Apple’s software includes expressive elements—such as variable names and comments—the Order permits Apple to express whatever it wants, so long as the software functions. … “At most, the Order compels conduct—namely, the removal of barriers from Farook’s iPhone—with an incidental effect on ‘speech’ (i.e., programming).”
Did the FBI effectively cause this legal standoff?
- Apple: ‘”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.”
- The FBI calls that “both untrue and irrelevant”: “A forced backup of Farook’s iPhone was never going to be successful, and the decision to obtain whatever iCloud evidence was immediately available via the password change was the reasoned decision of experienced FBI agents investigating a deadly terrorist conspiracy. … Both the FBI’s testing and Apple’s security documentation show that entire categories of evidence … reside only on the iPhone and not on an iCloud backup, and that some of the backup data would still have been encrypted.”
Who wants to set a dangerous precedent?
- Apple says this court order leads down a slippery slope that expands government’s reach into Americans’ private lives: “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.”
- The FBI says Apple is undermining the country’s legal system and usurping the government’s authority: “Apple’s rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government. … The government respectfully submits that those authorities should be entrusted to strike the balance between each citizen’s right to privacy and all citizens’ right to safety and justice. The rule of law does not repose that power in a single corporation, no matter how successful it has been in selling its products.”
You want to know what is really going on these days, especially in Colorado. We can help you keep up. The Lookout is a free, daily email newsletter with news and happenings from all over Colorado. Sign up here and we will see you in the morning!