6 Powerful Quotes from Apple’s Newest Court Filing

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Apple filed a major response in its ongoing legal fight with the FBI Tuesday. Overall the filing offers powerful arguments for why Apple can not be forced to weaken iOS encryption to allow the FBI to brute force attack the iPhone of a dead terrorist, but there were six passages that I found particularly powerful.

Powerful Words

The Founders Would Be Appalled

The first passage comes from the part of the filing arguing against the use of the All Writs Act from 1789 as a tool for compulsion against Apple:

The All Writs Act cannot be stretched to fit this case because to do so “would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction.” Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1290 (9th Cir. 1979). The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is. As theorized by the government, the Act can authorize any and all relief except in two situations: (1) where Congress enacts a specific statute prohibiting the precise action (i.e., says a court may not “order a smartphone manufacturer to remove barriers to accessing stored data on a particular smartphone,” Opp. 11), or (2) where the government seeks to “arbitrarily dragoon[]” or “forcibly deputize[]” “random citizens” off the street. Opp. 5, 16. Thus, 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.

That last line is one of the strongest statements in the entire filing—as a side note, the tone of Apple's filing is remarkably constrained compared to the FBI's previous filing. In that document, the FBI accuses Apple of colluding with the Chinese government, putting profits before patriotism, and otherwise being scallywags and ne'er-do-wells.

This laymen found Apple's systematic deconstruction of the All Writs Act to be compelling and logical. It will be fascinating to see how the court views it.

Confounding Law Enforcement

The FBI has accused Apple of enhancing security in iOS specifically to thwart law enforcement, a notion taken from an Apple FAQ that said Apple it was incapable of decrypting your data in the face of a warrant.

The idea that Apple enhances its security to confound law enforcement is nonsense. Apple’s “chain of trust” process—which follows accepted industry best practices—is designed to secure its mobile platform against the never-ending threat from hackers and cyber-criminals. See Neuenschwander Supp. Decl. ¶¶ 4–15. It is the same process that helps protect desktop computers from viruses and Trojan horses, and that ensures hackers do not tamper with the software on automobiles.

The important aspect of this passage is that Apple is stating clearly and succinctly that security is necessary to protect our devices from hackers, criminals, and foreign governments.

The Domino Theory

One of the most egregious claims by the FBI and the U.S. Department of Justice is that its efforts to force Apple to cripple our mobile devices is about one iPhone—the work phone used by Syed Farook. Both agencies have insisted that's the case even while acknowledging there are dozens more devices waiting for the outcome of this case. Other law enforcement groups have lined up, too, including District Attorneys and local law enforcement departments, all of whom have devices they want to access.

If Apple is forced to create software in this case, other law enforcement agencies will seek similar orders to help them hack thousands of other phones, as FBI Director Comey confirmed when he said he would “of course” use the All Writs Act to “return to the courts in future cases to demand that Apple and other private companies assist . . . in unlocking secure devices.” Ex. EE at 15 [Encryption Hr’g].17 Meanwhile, “[e]ncryption[] [will] always be[] available to bad actors,” as Director Comey conceded, id. at 23–24, creating a perverse unilateral disarmament through the erosion of the strong defense against cyberterrorism.

What's beautiful about this passage is that it quotes none other than FBI Director James Comey's own words, where he publicly countered what his own lawyers have argued in filings. More importantly, Apple is showing the judge that even Mr. Comey knows that if we take encryption away from law abiding citizens, that the bad guys will still have access to it. Let's hope she listens.

Image courtesy of Shutterstock.

Next: China, Speech, and Threats

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Without judging motives let me say that I believe that many in law enforcement would be perfectly happy if they could monitor all of our conversations whether at home, on our phones, in our cars, in our texts and even in public. There is a company now selling street lights with remarkable cameras that can watch areas around those lights, loud speakers and microphones that can monitor our conversations. If this is not Orwellian I don’t know what is. Of course these will be sold the the non-thinking masses as for their ‘protection and safety’. I can see it now. A TV add comes on. A woman is leaving her place of employment and it is dark. Appropriate music begins playing in the background. The announcer says: “You are leaving work and it is late at night. You think you are safe but waiting in the shadows is a threat you had not anticipated.” The ‘bad guy’ approaches the woman. The woman screams. Now the lights start blinking, a voice comes blaring through the speakers on these lights saying that the suspect has been recognized and police are on the way. Siren sounds start blaring through the street lights as they begin flashing. This will probably be impressive enough that they will blink in a way to lead police to the light closest to the crime. I am going to have to side with the quote attributed to Ben Franklin,  “Those who surrender freedom for security will not have, nor do they deserve, either one.” What most Americans believe is that America could never degenerate into a police state. One only has to study history in detail to see what happened to dissenters during WWI or WWII to understand this is not true. Another example would be the internment of Japanese during WWII many of whom lost their homes and businesses as a result of this government action. I would also suggest reading, It Can’t Happen Here by the American author Sinclair Lewis. The book was published in 1935. It describes the rise of “Buzz” Windrip, a populist United States Senator who is elected to the presidency after promising drastic economic and social reforms while promoting a return to patriotism and traditional values. After his election, Windrip takes complete control of the government and imposes a plutocratic/totalitarian rule with the help of a ruthless paramilitary force. (This is a paraphrase of an article about the book on Wikipedia.)

I want law enforcement to have all off the legitimate tools available to help them capture real criminals but these tools should never violate our unalienable rights. You see I do believe that “… all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” I also believe in our Bill of Rights. According to the MIAC report this makes me a domestic terrorist. See this by Pastor Chuck Baldwin: http://www.newswithviews.com/baldwin/baldwin500.htm. Here is a copy of the actual MIAC report: http://constitution.org/abus/le/miac-strategic-report.pdf.

The reasons for not creating software that has a backdoor for the government are many. Bryan has done and excellent job of examining some of these in this article. I think that without even going into the reasons why it will hurt our national security and ecommerce the overriding reason to do this is that it violates our right to privacy. Too many Americans seem unable to take the FBI’s request to its logical conclusion or believe that this will only be used in extreme cases. The point is how many people are being described as ‘terrorists’. Seriously some on the far left would be willing to brand  those who do not recycle as environmental terrorists while those on the far right would be willing to brand those who anti-war as terrorists. Anyone out of favor with the government or large corporate interest can very easily be vilified in our current mainstream media which seems to have a become toothless, lapdog press unwilling to report on the real issues facing this nation.

Let me leave you with this well know quote from Pastor Martin Niemöller:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

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