Apple filed their motion to vacate the court order that they “unlock” an iPhone yesterday. In other words they’ve made their formal argument for why they believe the order is invalid. Link It is quite readable but here’re the basics of Apple’s 3-part argument.
1️⃣ The All Writs Act does not give the government the authority to make this order because:
- it does not apply if congress has already considered a power and rejected it.
The courts have said it “does not authorize courts to issue ad hoc writs whenever compliance with statutory procedure appear inconvenient or less appropriate.”
- and in the Communications Assistance for Law Enforcement Act (CALEA) Congress did consider strong encryption and explicitly authorized phone companies to use it…
- and explicitly said the government cannot dictate what technology they use or don’t use
- and explicitly said the government cannot compel them to break encryption put in place by their users.
The law says phone companies are not 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.”
Apple is not a phone company (like Verizon etc) but they argue that this clearly indicates Congress did consider the implications of encryption and of forced back doors meaning the All Writs Act doesn’t apply.
Apple also points out that congress did consider revising CALEA to mandate back doors but “abandoned” the idea.
- Also Apple says they are “far removed” from the case
In the precedent being used to issue this order the courts said it could not be used if the company is “far removed” and Apple says they only built and sold the phone. They did not hold the data, transfer the data, assist in its usage etc…so they are not connected to the case in any direct way.
- and Apple says the burden on them is too great
Again in the case being used as precedent is says the action a company is being compelled to take must be “meager” and must not go strongly against their interests. Apple says the work involved is significant and that doing it will damage their reputation.
- and Apple says the FBI did not exhaust all other options first.
Again, the precedent says compelling the company to act must be the government’ only option. Apple points out that the FBI may have had another option but due to mishandling of the phone they closed that door on themselves.
As an aside, Apple points out that the FBI seems to have mislead the court on the circumstances of that mishandled evidence, claiming the county made the mistake and then later admitting that the county was operating under FBI instruction.
- finally Apple attempts to discredit the other cases the FBI cites showing how each is a very different situation from this case.
Wrapping up, Apple argues that if the All Writs Act power is expanded in this way, it will establish precedent that can be used to compel other companies and individuals to do all kinds of things…
- Apple could be required to write code to turn on the microphone on an iPhone to listen in
- or use the camera to watch people
- or use the gps to track people’s movements
- or a pharmaceutical company could be compelled to make drugs for lethal injections against its will
- or a journalist could be compelled to plant a false story to aid in capturing a fugitive
- or a software company could be compelled to put malicious code into the automatic update system so it is installed on their users’ computers secretly
“Under the government’s formulation, any party whose assistance is deemed ’necessary’…falls within the ambit of the All Writs Act and can be compelled to do anything the government needs to effectuate a lawful court order. While these sweeping powers may be nice to have from the government’s perspective, they simply are not authorized by the law…”
2️⃣ The order violates Apple’s first amendment right to freedom of speech.
- The courts have repeatedly affirmed that writing computer software is a form of expression protected by the first amendment.
- and the courts have affirmed that forcing someone to speak is just as carefully protected by the constitution as forcing them not to speak.
- So Apple says that the order “discriminates on the basis of viewpoint”.
- In other words when Apple chose to create software making it easy and automatic to encrypt all your data they were expressing a viewpoint about privacy and public safety.
- Forcing Apple to make new software to undermine this compels them to express a viewpoint contrary to their established beliefs.
Apple says the legally allowable restriction on free speech in support of government interests does not go this far.
3️⃣ The order violates Apple’s fifth amendment right to due process of law.
- the fifth amendment guarantees the right to be free from “arbitrary deprivation of liberty by government”.
- Apple argues that compelling them to “do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to [their] core principles” violates this right.
In conclusion…
“This is not a case about one isolated iPhone. Rather this case is about the DOJ and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.”