The government says the security and privacy issues raised by Apple and numerous other tech companies about a court order in the San Bernardino iPhone case are mere diversions designed to hide the fact that Apple has deliberately created technical barriers to avoid assisting the government with lawful warrants. The government made the assertion in a brief filed in court today.
“Instead of complying, Apple attacked the All Writs Act as archaic, the Court’s Order as leading to a ‘police state,’ and the FBI’s investigation as shoddy, while extolling itself as the primary guardian of Americans’ privacy,” the government wrote in its brief, filed in the US District Court for the Central District of California (.pdf). “Apple’s rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government.”
The government also suggested through innuendo that Apple was in some kind of collusion with the Chinese government in storing the data of Chinese users in that country. The implication was that Apple may be providing the Chinese government with access to data that it won’t give the US government.
Apple responded harshly to this in a call with reporters after the brief was filed.
“The tone of the brief reads like an indictment,” Apple’s chief counsel Bruce Sewell said in the call. “In thirty years of practice I don’t think I’ve ever seen a legal brief that was more intended to smear the other side with false accusations and innuendo and less intended to focus on the real merits of the case.”
This modest burden is largely a result of Apple’s own decision to design and market a nearly warrant-proof phone. US Government
Federal Magistrate Judge Sheri Pym issued an order last month requiring Apple to create a special software tool that would eliminate specific security protections the company built into its phone software. The tool would help the FBI crack the password on an iPhone used by one of the San Bernardino shooting suspects and thereby decrypt data stored on the phone.
But Apple says the court order is unconstitutional on several grounds and violates the separation of powers doctrine in that it would give the court and government authority that Congress never granted.
“[T]his case is about the Department of Justice and the FBI seeking through the courts 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,” Apple attorney Marc Zwillinger wrote in the company’s motion asking the court to vacate the order.
Apple pointed out that in the past Congress specifically opted not to give the government power to order a company to help decrypt data. Under the Communications Assistance for Law Enforcement Act, a law passed in 1994 that defines the circumstances under which telecoms must assist law enforcement in conducting electronic surveillance through wiretaps, if a customer or company encrypts communication and data, the government cannot compel that company to assist in decrypting the communication if the company does not possess the decryption key. CALEA also does not prohibit a company from employing an encryption scheme for which it does not retain the ability to decrypt communications.
More recently, lawmakers on Capitol Hill have signaled their continuing opposition of forced decryption. Senator Ron Wyden (D-Oregon) introduced legislation in 2014 that would prohibit the government from compelling companies like Apple to install backdoors in encrypted systems that would allow the government to decrypt protected communications.
The Government Makes Its Case for Using the All Writs Act
But the government has cited a different statute in support of its case—the 200-year-old All Writs Act, which it says compels Apple to provide assistance in cracking the San Bernardino iPhone.
The government has cited US v New York Telephone Company as one of the primary precedent-setting cases that give it authority under the All Writs Act. In that case, the government required New York Telephone company to provide technical assistance to record numbers dialed from a phone in what is known as a pen-register. New York Telephone objected, saying the pen-register statute didn’t require companies to provide technical assistance. The Supreme Court ultimately ruled that the phone company could be compelled to assist because it was already collecting this information as a matter of course for its own business purposes, in order to bill customers, detect fraud and conduct troubleshooting. As long as the assistance being sought was not unduly burdensome to the company, it could be compelled to assist.
The government has tried to make the same argument in the Apple iPhone case, saying that writing the software tool it wants would not be burdensome to Apple because the tech giant already “writes software code as part of its regular business.”
But Apple has said that the All Writs Act does not apply in the present circumstances and does not provide the kind of power the government is seeking. If the court upholds the All Writs Act in this case, it could lead to the government seeking even greater assistance from Apple and other companies in the future.
“[U]nder the government’s formulation, any party whose assistance is deemed ‘necessary’ by the government falls within the ambit of the All Writs Act and can be compelled to do anything the government needs to effectuate a lawful court order,” Apple wrote in its brief. “While these sweeping powers might be nice to have from the government’s perspective, they simply are not authorized by law and would violate the Constitution.”
If Apple can be forced to write code to bypass its own security features in this way, there would be nothing to stop the government from demanding in the future that Apple or another software maker write code to turn on the microphone or video camera on a device to help the government surreptitiously record conversations and images or turn on location services to track a phone user, Apple said.
In a separate iPhone case in New York last week, Magistrate Judge James Orenstein agreed with Apple that the All Writs Act does not provide authority to force Apple to unlock phones or provide assistance to decrypt data. The government isn’t asking Apple to develop special software to crack the New York phone—there’s no need because the phone is reportedly using an older version of Apple’s operating system that allows the company to bypass a user’s password to extract encrypted data. Regardless of the nature of the assistance being sought in that case, however, Orenstein said that prosecutors were still asking the court to give them authority that Congress had so far specifically chosen not to give them: the authority to compel a company to unlock a protected device.
Lawmakers and the public, he noted, are still wrestling with the question, and the fact that no statute currently exists specifically giving courts the authority to compel a company to unlock a device can’t be interpreted as an oversight on the part of lawmakers, or a sign that the courts should step in to fill the gap left by the absence of a statute. Instead, the lack of a clear statute seemed to indicate that lawmakers were ambivalent on whether such a law compelling companies is appropriate or necessary. Issuing an order to compel Apple to unlock the device would assume an intent on the part of lawmakers that wasn’t there.
But in its response today in the San Bernardino case, the government argued that Congress intended for the All Writs Act “to be broad and flexible, capable of rising to meet new obstacles to the courts’ lawful exercise of jurisdiction.”
The Act is not an example of judicial usurpation of congressional power, the government said, “but rather an example of Congress’s reliance upon the courts’ sound discretion and close familiarity with specific facts to ensure that justice is done.”
As for the argument that Congress has kept silent on the issue of backdoors and has not expressly given the government authority to compel companies to decrypt data, lawyers for the Justice Department wrote in their brief today that the Supreme Court has emphasized in other cases that meaningful conclusions cannot be drawn from Congress’s silence on matters.
“[The Supreme Court has repeatedly made clear ‘that failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute, reasoning that congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.”
The Government Says Apple’s at Fault for Building Encrypted Software in the First Place
In its response today, the government accused Apple of deliberately raising technological barriers that prevent it from assisting authorities with a lawful warrant. “Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden,” the government wrote. “Under those specific circumstances, Apple can be compelled to give aid. That is not lawless tyranny. Rather, it is ordered liberty vindicating the rule of law.”
The government also responded to Apple’s claims that complying with the court’s order to create the software tool would be burdensome.
Apple “would need to set aside as few as six of its 100,000 employees for perhaps as little as two weeks,” the government wrote. “Apple is one of the richest and most tech-savvy companies in the world, and it is more than able to comply with the AWA order. Indeed, it concedes it can do so with relatively little effort. Even this modest burden is largely a result of Apple’s own decision to design and market a nearly warrant-proof phone.”
As for helping the government decrypt data, the government cited the 1807 case of United States v. Burr in which Chief Justice Marshall held that a clerk working for former Vice President Aaron Burr could be forced to decipher a coded letter of Burr’s, “provided that doing so would not incriminate the clerk.” It also cited a more recent case in which a court held that the All Writ’s Act could be used to demand the decryption of a laptop, “provided that the act of decryption itself would not be used to incriminate the defendant. Here, Apple will not incriminate itself by removing barriers to the lawful search of Farook’s iPhone.”
As for Apple’s contention that forcing it to write and sign code that it opposes is a violation of its First Amendment right, the government notes that the “‘essential operations’ of the American legal system rest upon people sometimes having to say things that they would rather not say—such as when a witness is subpoenaed and sworn to speak the whole truth and nothing but the truth.”
Apple’s First Amendment claim is weak, the government writes, “because it does not involve a person being compelled to speak publicly, but a for-profit corporation being asked to modify commercial software that will be seen only by Apple.”
The fact that the government is leaving it to Apple to determine how to write the code the government is seeking, indicates that Apple is not being dictated in stating any message. To the extent that Apple’s software “includes expressive elements—such as variable names and comments—the Order permits Apple to express whatever it wants, so long as the software functions,” the government said.
The government also said that Apple removing security barriers from iPhone “is conduct, not speech.” To support this, the government cited the Supreme Court: “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.”
Apple has until March 15 to respond to the government’s brief. A hearing has been scheduled for March 22 to provide the judge with oral arguments in the case.