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Apple Channels Founding Fathers in Legal Brief

By David Jones
Mar 17, 2016 12:45 PM PT
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Apple on Tuesday filed a brief arguing that the demands the Department of Justice has made in seeking a backdoor to iPhone encryption would have appalled America's founding fathers.

The FBI and DoJ want Apple to create new software code that would help government investigators bypass built-in encryption on the iPhone of Syed Farook, who with his wife carried out last year's San Bernardino, California, terrorist attack.

"The Justice Department and the FBI are seeking an order from this court that would force Apple to create exactly the kind of operating system that Congress has thus far refused to require," reads the brief, which responds to the government's opposition papers filed in federal district court earlier this month.

The new code essentially would allow authorities to unlock the specific iPhone and gain access to any data that was left on the device after the shooting, and use it to pursue other potential terrorist links or future plots.

Widespread Risks

The government demand would put Apple at risk of being forced to engage in similar cooperation in other cases, would put the security of the iPhone at risk, and would risk similar orders being forced upon the company by other governments in countries where it operates, Apple and its supporters have argued in court filings and public testimony.

The government is using the All Writs Act to attempt to bypass the Communications Assistance for Law Enforcement Act, a wiretapping law signed by President Clinton in 1994. CALEA forbids law enforcement from forcing an electronic communication service from adopting any "specific design of equipment, facilities, services, features or system configurations," according to the filing.

The government has acknowledged that FaceTime and iMessage features on the iPhone are electronic communication services but claimed that is irrelevant because the court order does not bear upon the operation of those services, it notes.

The government wants access to iMessages left on the phone.

Balance of Power

Lawyers for the DoJ and Apple are scheduled to appear in court next week before U.S. Magistrate Judge Sheri Pym in Riverside, California, to make oral arguments on the motion to dismiss.

"We look forward to responding to Apple's arguments before the court on March 22," said Marc Raimondi, a spokesperson for the Department of Justice.

"As we have said in our filings, the Constitution and the three branches of the federal government should be entrusted to strike the balance between each citizens right to privacy and all citizens rights to safety and justice," he told the E-Commerce Times.

"The Constitution and the laws of the United States do not vest that power in a single corporation," Raimondi added.

Support for Apple

What the FBI is seeking is unprecedented, said Alan Butler, senior counsel at the Electronic Privacy Information Center.

"No company has ever been required to produce special software to undermine its own security systems," he told the E-Commerce Times. "Apple has a strong legal position in this case."

In a separate case, Federal Magistrate Judge James Orenstein last month ruled that Apple did not have to unlock an encrypted iPhone. The judge in the California case is likely to consider Orenstein's decision, Butler said.

"In particular, Judge Orenstein found that Congress had already considered -- and rejected -- a broad decryption requirement for device manufacturers when it passed the Communications Assistance for Law Enforcement act back in the mid-1990s," he said.

"There really is not a compromise ruling here. Either the judge orders Apple to provide the assistance or she denies the FBI's application," Butler added.

A group that organized protests outside Apple stores and FBI headquarters last month plans to descend on the courthouse next week in a show of support for greater iPhone security. The group, Fight for the Future, is launching an online campaign called "#SaveSecurity" and a website to organize protesters online.

"We wanted to ... make sure that we educate the public and decision-makers about the fact that this case isn't just about one phone, or even just about iPhones -- it's about the future of all of our safety and security," said Evan Greer, campaign director of Fight for the Future.

"Since launching just a few hours ago, more than 3,400 people have already added their voices to the effort. We expect this number to grow dramatically before Tuesday," he told the E-Commerce Times.

The government's reliance on the All Writs Act is an indication that the case cannot stand on modern case law, said Sophia Cope, staff attorney at the Electronic Frontier Foundation.

"The problem is that the AWA has never been applied in this way, and it can't be used for an unconstitutional purpose," she told the E-Commerce Times. "In short, the Constitution will always trump a statute."


David Jones is a freelance writer based in Essex County, New Jersey. He has written for Reuters, Bloomberg, Crain's New York Business and The New York Times.


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