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.
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
Page 2 - China, Speech, and Threats
What About China?
In the passage below, Apple knocks down the FBI's ham-fisted efforts to take Apple statistics on responding to subpoenas on lost and stolen iPhones around the world and compare it to ordering Apple to create a new operating system to bypass iOS encryption.
The government attempts to disclaim the obvious international implications of its demand, asserting that any pressure to hand over the same software to foreign agents “flows from [Apple’s] decision to do business in foreign countries . . . .” Opp. 26. Contrary to the government’s misleading statistics (Opp. 26), which had to do with lawful process and did not compel the creation of software that undermines the security of its users, Apple has never built a back door of any kind into iOS, or otherwise made data stored on the iPhone or in iCloud more technically accessible to any country’s government. See Dkt. 16-28 [Apple Inc., Privacy, Gov’t Info. Requests]; Federighi Decl. ¶¶ 6–7. The government is wrong in asserting that Apple made “special accommodations” for China (Opp. 26), as Apple uses the same security protocols everywhere in the world and follows the same standards for responding to law enforcement requests.
This is a simple, elegant deconstruction of the FBI's claims, and it was a pleasure to see Apple's lawyers confirming my own rant on the issue.
Freedom of Speech
One of Apple's contentions is that it and its engineers have the right of free speech, and that the FBI was attempting to compel speech by forcing the company to write a new operating system.
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. “Accepting the Government’s theory would give [it] the [...] license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2589 (2012) (opinion of Roberts, C.J.) (emphasis added). The First Amendment does not permit such a wholesale derogation of Americans’ right not to speak.
What I love about this passage is the imagery comparing this attempted compulsion to other forms of speech that have long been understood and accepted in the courts and in our society. It's a very powerful argument in my eyes.
Well-Meaning Threats to Liberty
In Apple's conclusion, the company brought forth a powerful quote from 1928 to make an argument that I think is central to the debate on encryption and privacy.
Almost 90 years ago, Justice Louis Brandeis, reflecting on the “progress of science” beyond wiretapping, famously warned that “[t]he greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Olmstead v. United States, 277 U.S. 438, 474, 479 (1928). In this case, the government’s motivations are understandable, but its methods for achieving its objectives are contrary to the rule of law, the democratic process, and the rights of the American people. The Court should vacate the order and deny the government’s motion to compel.
Those are such powerful words, and so very true. All along, this issue should not be viewed through the lens of one dead terrorist's work iPhone, but instead through the lens of where this case could be used to limit our liberty in 6 months, 5 years, or decades from now.
Times of peril and stress that are so often used by well-meaning people to accomplish good, short-term objectives—for instance, stopping terrorists—with actions that have devastating consequences in the future. Just look to the Patriot Act for a recent example. Warrantless wiretaps, gag orders on librarians, mass surveillance unbound by judicial oversight—these were just some of the examples where our freedom and liberty was abridged in the name of stopping terrorists.
Crippled security and worthless encryption on our devices is just as big a threat as those issues, and Justice Brandeis's words speak directly to that threat.
Image courtesy of Shutterstock.