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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