Apple accuses FBI of violating

constitutional rights in iPhone battle

Apple’s lawyers believe forcing America’s largest company to help the government crack
open one of its iPhones would violate the US constitution and be a misinterpretation of a 227-
year-old law.

The 36-page legal brief, submitted on 25 February, is Apple’s first formal rebuttal to a court
order to write and sign software that would make it easier for investigators to open a phone
used by San Bernardino gunman Syed Farook, who, with his wife Tashfeen Malik, killed 14
and wounded 22 on 2 December.

The tech firm’s attorneys argue the government seeks “a dangerous power that Congress and
the American people have withheld: the ability to force companies like Apple to undermine
the basic security and privacy interests of hundreds of millions of individuals around the
globe.”

Facebook and Twitter will join a supporting brief; Microsoft general counsel Brad Smith told
the house judiciary committee on Thursday that his company would do the same, indicating
that tech companies were coalescing around support for Apple despite extensive outreach by
senior Obama administration officials earlier this year. “The industry is aligned and working
on a joint submission to the court,” said an industry representative.

Apple’s legal team, led by George W Bush’s former solicitor general Theodore Olson,
portrayed the government not only as indifferent to privacy concerns, but placing the security
of its customers’ digital lives at risk of attack, suggesting that the US was unwittingly
conducting a cyberattack on millions of Apple users.

The Justice Department was seeking to “roll back by judicial decree” the measures Apple
takes through its most recent mobile encryption protocols to protect “financial records and
credit card information, health information, location data, calendars, personal and political
beliefs, family photographs, information about [customers’] children.”

Apple also accused the government of outright dishonesty over claims, repeatedly made by
FBI director James Comey, that it was not seeking to set a precedent. Comey conceded
earlier on Thursday that the resolution of the Apple-FBI showdown would inevitably “guide
how other courts handle similar requests” to force access on locked mobile devices.

In a legal brief that reflected a battle for public opinion as much as for legal victory, Apple
said it would continue to “strongly” support law-enforcement efforts to combat terrorism – a
reference to its long record of cooperation with “legally valid” government data requests –
but said it cannot comply with an “unprecedented” order placing constitutional rights in
jeopardy.

Apple says the court order violates American free speech law under the first amendment and
due process protections under the fifth amendment, and that it leans too heavily on the so-
called All Writs Act, a statute dating back to 1789 that gives courts broad authority to ensure
orders are fulfilled.
Another statute at issue is the Communications Assistance for Law Enforcement Act
(CALEA) which Apple says the government ignores, but which the government says does not
apply in this case. In 1996, a federal court ruled that computer code is protected speech under
the first amendment. In an illustration of the cyclical nature of debates over technology and
society, the plaintiff in that case was a University of California Berkeley graduate student
who had developed an encryption algorithm.

The government paints a very different picture. US attorneys say Apple is placing marketing
over national security and that it only seeks help in one extraordinary case – that of the
deadliest terrorist attack on US soil since September 11. It also states that American
companies are required to comply with American law when it is technically possible.

Justice Department spokesperson Melanie Newman, responding to the Apple brief, said the
tech company was the only one departing from long-established norms.

“Law enforcement has a longstanding practice of asking a court to require the assistance of a
third party in effectuating a search warrant,” she said. “When such requests concern a
technological device, we narrowly target our request to apply to the individual device. In each
case, a judge must review the relevant information and agree that a third party’s assistance is
both necessary and reasonable to ensure law enforcement can conduct a court-authorized
search. Department attorneys are reviewing Apple’s filing and will respond appropriately in
court.”

Apple argued that any government effort to compel a company to create access into a product
for law enforcement was “a political question, not a legal one” – a move that could add to
pressure, which tech companies have thus far resisted, to pass a law mandating such access.

Apple’s user-privacy chief, Erik Neuenschwander, all but accused the FBI of technical
illiteracy in a supplemental declaration refuting the government’s claim that since Apple can
always destroy the code permitting it access into Farook’s iPhone, it was not actually
mandating the creation of a back door.

Replicating a code once engineered is “as easy as a computer key stroke because the
underlying code is persistent”, Neuenschwander stated. The logs Apple would have to keep
documenting the creation process – likely to be necessary from a legal compliance
perspective – would provide the “government or anyone else... [with] a roadmap to recreate
Apple’s methodology, even if the system and underlying code no longer exist.”