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Apple vs. the FBI: The legal arguments in a nutshell

Grant Gross | Feb. 29, 2016
Apple has attacked the FBI's iPhone unlocking request on several legal fronts.

The bigger issue: More broadly, FBI Director James Comey and other officials have called for a policy debate about criminals’ use of encrypted communications to shield law enforcement from their activities.

Beyond this case, the larger issue is “really about who we want to be as a country, and how do we want to govern ourselves?” Comey said during a congressional hearing Thursday. Investigators increasingly can’t read the communications of “terrorists, gangbangers, pedophiles, all different kinds of bad people,” he said.

The FBI wants a public debate about the issues of encryption and security, Comey added. “We’re not here to tell the American people what to do about it, we’re just here to tell you there is a big problem, and that darkness is going to grow and grow and grow and change our world,” he said.

Apple argues that the FBI request, if successful, will open the door to hundreds of similar requests from investigators across the country and the world.

“This is not a case about one isolated iPhone,” the company’s lawyers wrote Thursday. Instead, the FBI is seeking “a dangerous new power” to force Apple and other tech companies to undermine basic security and privacy protections.

The order, if upheld, would create a workaround to encryption protections on iPhones, “making its users’ more confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance,” Apple’s lawyers wrote.

Apple vs. the All Writs Act: The company argues Pym’s order ignores several limits on the All Writs Act. The act does not give courts new authority to compel assistance beyond that already authorized by Congress, Apple says.

In addition, the judge’s order is “unreasonably burdensome,” and would require Apple to create a new operating system, tying up six to 10 of its employees for up to a month.

Apple is also “far removed” from the terrorism and mass shooting case being investigated, its lawyers argue. “The All Writs Act does not allow the government to compel a manufacturer’s assistance merely because it has placed a good into the stream of commerce,” they wrote in their appeal. “Apple is no more connected to this phone than General Motors is to a company car used by a fraudster on his daily commute.”

Apple’s First Amendment argument: The company points to several court cases where judges have considered code as a form of speech. It’s a violation of the First Amendment to force speech, the company’s lawyers argue.

Apple’s Fifth Amendment argument: The due-process claims are a bit tougher to follow, but they go like this: The Fifth Amendment protects U.S. residents against the government taking away their liberty. The requested order would require Apple to “do the government’s bidding” in a way that’s burdensome and violates Apple’s “core principles,” its lawyers argue.


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