Apple Slaps Down the FBI's Encryption Hail Mary Effort: 'The Founders Would Be Appalled'

Both sides will be back in court next week.


Credit: Andrew* / photo on flickr

When the Department of Justice and Apple face off again in court next week over the effort to get access to San Bernardino terrorist Syed Farook's work iPhone, let's just say the lawyers may not be particularly friendly toward each other.

The Department of Justice, while trying to use the All Writs Act to get a judge to force Apple to create a software program to weaken the phone's security, took the extraordinary step of actually attacking Apple as part of the process, as though somehow Apple were endorsing criminal behavior by proxy.

Apple is getting the last word before Tuesday's court date with a final brief, which does not pull punches, either rhetorically or technically. It blasts the Justice Dept. for misreading (probably deliberately) the context of previous decisions invoking the All Writs Act (legislation intended for the courts to use to force compliance to legal orders in certain situations) and trying to get the courts to completely ignore both the consequences of conscripting a private company to produce software on demand, as well as the consequences of demanding a weakening of phone security because it may help (possibly, but maybe not) the government get useful information.

On the conscription front, Apple is both blunt and aghast and the potential consequences should the court accept the Justice Dept.'s arguments that they can order third parties to do anything the courts permit unless the law specifically says they cannot:

[A]ccording 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.

One wonders what might happen if the Apple loses the case, the judge orders Apple to develop the tool, but every time Apple assigns engineers to create the programming to allow the FBI to try to brute force the phones passcode, those engineers resign. Could the court still force those engineers to work on the project?

And as for the consequences of the development of the tools themselves, Apple is quick to point out the significant number of security and intelligence officials who understand how important strong encryption is to protecting citizens from criminals and hackers:

[T]he 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. See, e.g. … quoting Defense Secretary Ashton Carter: "[D]ata security, including encryption, is absolutely essential to us. . . . I'm not a believer in backdoors . . . .");  … U.S Safer with Fully Encrypted Phones, CNBC (Feb. 23, 2016)] (quoting former NSA and CIA Director Michael Hayden: "America is more secure—America is more safe—with unbreakable end-to-end encryption.")

The brief is chock full of technical references and analysis of previous court precedents that I won't get into, but you can read Apple's filing here. One rather unusual invocation in the brief: Toward the end, when making the case that the First Amendment forbids forcing Apple to write code on the government's behalf, Apple's lawyers use last year's Obergefell v. Hodges Supreme Court decision as a precedent. That was the decision that mandated same-sex marriage recognition. What on earth would gay marriage have to do with Apple's encryption? The majority decision, written by Justice Anthony Kennedy, drew heavily on the concept of "personal autonomy" in recognizing the right of gay couples to choose whether to marry. The Apple brief quotes briefly from the decision, stating that that "conscripting" Apple engineers to write code would violate "personal choices central to individual … autonomy."

While we can't be certain of what federal judge Sheri Pym will ultimately rule, her initial orders were written in such a way that she wanted to make certain that whatever Apple developed could only be used for Farook's iPhone and could not get out of Apple's control. So it's clear that she is not ignoring the larger issues that surround what the Justice Dept. is asking of her, as much as they want her to do so.

I will stick my neck out and make a prediction: Given that some in the Senate are attempting to draft legislation related to encryption authority and government access, I have a hard time picturing Pym agreeing to bypass that process with an authorization with such potentially far-reaching consequences. Apple also makes a very strong case that Congress thus far deliberately has not given the Department of Justice the authority to demand the kind of cooperation it is asking for. I predict she will vacate her order and not require Apple to cooperate, putting her in line with a judge's recent ruling in New York.

That doesn't mean the court battle is over. Whoever loses is most certainly going to appeal.