Apple to FBI: ‘The Founders Would be Appalled.’
The Government is pushing too far, argues Apple, in their efforts to crack the San Bernardino terrorist’s iPhone.
In the latest round of legal battles between Apple and the FBI over accessing data in an iPhone used by one of the San Bernardino terrorists, Apple has fired back at the FBI with a scathing brief accusing the government of massive overreach in their efforts to get Apple’s assistance in unlocking the phone.
As Legal Insurrection reported last month, the iPhone 5C belonging to one of the shooters was seized as evidence by the FBI. The FBI obtained a warrant to search the contents of the iPhone, but ran into trouble with its passcode. The government wanted Apple to help them bypass the iPhone’s security measures, but Apple refused, arguing that doing so would unacceptably put the privacy of other customers’ iPhones at risk. The District Court of Central California issued an order for Apple to assist the FBI in unlocking the iPhone, and Apple objected. This set of several rounds of jousting, both in court and in the arena of public opinion.
How a law from more than two centuries ago is governing a case about iPhone security
The case has been covered heavily in both legal and tech blogs, as the intersection of privacy vs. security, plus the involvement of one of the world’s most influential tech companies. As MacWorld Executive Editor Susie Ochs wrote:
The court’s order for Apple to create a new version of iOS that would be easier for the FBI to crack was issued under the All Writs Act, a law first passed in the late 18th century. This act allows courts to issue warrants that aren’t authorized by more specific laws. But in this case, Apple argues, there is a more specific law called CALEA that can’t be stretched to fit the government’s request. Apple also argues that Congress had a chance to pass even more specific legislation, but declined to act.
In advance of the first hearing on the merits coming up on March 22, both sides filed briefs. The Justice Department fired the first shot, slamming Apple for its “false” and “corrosive” rhetoric. This week, Apple returned fire, arguing that the government was ignoring the bigger picture about what they were really asking Apple to do, and for the government to make such a request was overly intrusive:
The government attempts to rewrite history by portraying the [All Writs] Act as an all-powerful magic wand rather than the limited procedural tool that it is.… According to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up. The Founders would be appalled.
Apple took a large section of their brief to issue what Wired called a “withering fact check” on the government. Apparently the government was looking at the wrong screen to determine iCloud backup status, and got several other details incorrect about how Apple’s proprietary cloud-based backup actually operates.
Is computer code speech?
Because complying with the court order would require Apple’s engineers to rewrite the iPhone operating system (in an amusing turn of phrase, Apple’s lawyers name what the government is requesting as a new “GovtOS” operating system), Apple argues that this is a violation of the First Amendment:
Even assuming there is such a thing as purely functional code, creating the type of software demanded here, an operating system that has never existed before, would necessarily involve precisely the kind of expression of ideas and concepts protected by the First Amendment. Because writing code requires a choice of (1) language, (2), audience, and (3) syntax and vocabulary, as well as the creation of (4) data structures, (5) algorithms to manipulate and transform data, (6) detailed textual descriptions explaining what code is doing, and (7) methods of communicating information to the user, there are a number of ways to write code to accomplish a given task.
As such, code falls squarely within the First Amendment’s protection, as even the cases cited by the government acknowledge…
The government’s position has sweeping implications. Under the government’s view, the state could force an artist to paint a poster, a singer to perform a song, or an author to write a book, so long as its purpose was to achieve some permissible end, whether increasing military enrollment or promoting public health.
In other words, Apple argues that the government’s efforts to force its engineers create these new lines of code are essentially forcing them to speak. (Of course, we’re living in a world where the Supreme Court of the United States says it’s fine for the government to force us to buy Obamacare, so maybe this is just the logical next step?)
Encryption wasn’t designed to shield criminals, argues Apple, but to protect us from criminals
Rejecting the government’s argument that this was a “modest order” affecting only a “single iPhone,” Apple stated that complying with the FBI’s request would irreparably compromise the iPhone’s security, which was a danger both for individual customers’ privacy, and an assault on the Fourth Amendment.
One of Apple’s chief concerns is that if they did create this “GovtOS” to crack the terrorist’s iPhone, it might prove impossible to keep that technology private. If that information were leaked or stolen, it could be a very damaging tool in the hands of criminals. One interesting point Apple made is that unlike the government, which has the ability to create undercover identities and job titles to shield their employees who work on sensitive matters, Apple can offer no such protections to their employees. Once it became known that “GovtOS” had been created, Apple worries, the engineers who created it would be vulnerable to kidnapping or extortion.
The next hearing is scheduled for March 22, 2016, at 1 p.m. PT. Google, Facebook, Amazon, and Microsoft have all filed amicus briefs in support of Apple.
Follow Sarah Rumpf on Twitter: @rumpfshaker.
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All of this because the feds didn’t do their jobs in the first place and now they want Apple to cave. Had the state dept done a better job vetting immigrants instead of handing out visas like candy and the FBI not been more preoccupied with spying on citizens, then there might not have been terrorist acts being committed. Add in a failed immigration policy for those who over stay visas and lack of law enforcement, and one has to wonder why have a fed gov at all if all they do is violate our rights and stomp on the Constitution. The FBI can go pound sand.
All of this because the feds didn’t do their jobs in the first place and now they want Apple to cave.
A feature, not a bug.
It seems everything was OK and Apple was able to hand the FBI the data it requested, until the FBI ordered the San Bernardino County Department of Health, Farook’s former employer and owner of the iPhone 5c in question, to reset the associated Apple ID password on Dec. 6 without first consulting Apple. That locked everyone out.
Donald Trump has sided with the Federal Government over Apple. I’m kind of wondering how the many Trumpkins currently on this blog feel about that.
“Sided” is WAY too suggestive of thought and deliberation.
KNEE-JERKED is much more apt. And typical.
He tossed of his usual “hate the market, HATE due process” call for a boycott of Apple.
Remember our Bierhall Bullyboi Britt’s call to CRUSH Apple with every corrupt use of the BIG GOVERNMENT agency state he could think of?
I do. That’s how we know the puke is a fascist. Well, one way…
I predict they’ll overlook it. Trump’s “cult of personality” is every bit as effective as Obama’s was.
Trump is all for big government, especially if he’s at the helm. He will always side with the government over private businesses … other than his own.
So has Mark Levin.
There’s a search warrant here, issued on good cause.
Really? Are the two mens’ positions the same? Or are they completely different while reaching what APPEARS to be the same conclusion?
This all comes down to a question of whether a government search and seizure is justifiable under the Fourth Amendment. Is there probable cause? Have warrants been issued? Those are the usual considerations.
Now if this were evidence locked in a house, I don’t think there would be any controversy. With warrant in hand the Feds would unlock the door then enter the house and remove the evidence.
Yet if the house had an iPhone embedded into the lock circuit in such a way that it couldn’t be circumvented without destroying the evidence contained in the house, we’re supposed to accept that law enforcement is out of luck?
It just doesn’t make sense for Apple to refuse to unlock any phone that’s the object of a court ordered search warrant.
The police can come to my door with a warrant allowing them to search the place. That doesn’t mean I have to unlock the door and let them in. They would then have the right to bust my door down, but I DO NOT have to facilitate their entrance.
And suppose I have a safe in my house? If they want to search it, I am NOT obliged to open it for them. Again, it would be their charge to figure how to get into it without my help.
There are upsides to cooperating with the authorities (house left intact, kids not shipped off to CPS, arrest avoidance, more favorable treatment while in their custody). My life is easier if I cooperate with them, but I am not obliged to.
“Yet if the house had an iPhone embedded into the lock circuit in such a way that it couldn’t be circumvented without destroying the evidence contained in the house, we’re supposed to accept that law enforcement is out of luck?”
That would be a bomb on the house. The FBI would bring in their bomb squad and if they weren’t good enough to disarm the bomb than they would lose the evidence. They sure aren’t going to call the explosives manufacturer and ask them to change the composition of the explosives so that they won’t blow up. So what has happened is that the FBI’s bomb squad either isn’t good enough or screwed up and now they are trying to get Apple to fix it for them.
I’m not sure why you’re introducing a bomb into this scenario, or why the practical impossibility for law enforcement to accomplish the task themselves somehow justifies Apple’s intransigence. Apple has the capability to resolve this WITHOUT compromising their customer’s precious selfies.
I suppose we’ll have to wait until this wends it’s way up through the legal system. Anyone have any idea what the ratio of iPhones to Android phones is among Supreme Court justices?
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