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Apple's latest legal filing: 'The Founders would be appalled'

Susie Ochs | March 17, 2016
In its last brief to Judge Pym before the first hearing on March 22, Apple makes its case for encryption.

Apple managed to keep its cool on Tuesday when replying to the government’s last, rather incendiary, briefing. In its reply to Judge Pym, Apple laid out its legal arguments for refusing to comply with the FBI’s request for assistance in breaking into the iPhone 5c of San Bernardino shooter Syed Rizwan Farook.

Apple also vigorously defended itself against the government’s claims that the company made iOS more secure in a deliberate attempt to thwart law enforcement, or as a marketing decision, even submitting supplemental declarations from Craig Federighi and a senior director of worldwide advertising. It’ll be interesting to see what issues are emphasized at the hearing, because right now it doesn’t seem like Apple and the Department of Justice see eye to eye on, well, pretty much anything.

Here’s a summary of Apple’s brief, which will be its last word before the first hearing, scheduled for March 22 at 1pm PST.

The All Writs Act is inappropriate

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.

Basically, Apple says the government is trying to use the All Writs Act to authorize anything the government wants that isn’t already on the books as being illegal.

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.

Nobody but the FBI thinks this is a good idea

While Apple’s brief focuses on the law, it doesn’t ignore the broader context of the encryption debate. This is bigger than the FBI and Apple disagreeing about if and how to break into Farook’s iPhone, in other words, and even top officials that used to work for the government can see the risk.

“Indeed, the Justice Department and FBI are asking this Court to adopt their position even though numerous current and former national security and intelligence officials flatly disagree with them,” reads Apple’s filing. It goes on to quote several from the community, including former NSA and CIA Director Michael Hayden, who said, “America is more secure—America is more safe—with unbreakable end-to-end encryption.”


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