Like many in the software world, we've been closely following Apple's dispute with the United States government. Apple has been cooperating with the investigation into the 2015 terrorist attack in San Bernardino, California until now, but the company recently ended up facing an order that it felt was unreasonable: to create a special version of iOS that would allow the government to brute-force one of the shooter's iPhones.
Earlier this month, Apple's CEO Tim Cook penned an open letter objecting to one of the government's requests, and today, Apple filed a motion to vacate the court order compelling it to comply with the FBI's request.
For a legal document, the motion is quite readable. The introduction in particular is worth a look if you're at all interested in the ramifications of the case. Apple's argument is that the Department of Justice and the FBI are trying to use the courts rather than the legislature to gain an extraordinary and dangerous power. Apple objects to the FBI's use of the All Writs Act, asserts that the requested software would endanger the security and privacy of all Apple users, and claims obeying this order would create a dangerous precedent.
Apple's first complaint is that this argument is happening in the courts rather than in public. The company's motion argues that "the government had the opportunity to seek amendments to existing law, to ask Congress to adopt the position it urges here. But rather than pursue new legislation, the government backed away from Congress and turned to the courts."
To be fair to the FBI, America's legislative branch has not been setting productivity records recently. However, we think Apple has a point here. It says, "By invoking 'terrorism' and moving ex parte behind closed courtroom doors, the government sought to cut off debate and circumvent thoughtful analysis." These issues are certainly worth public discussion and debate.
Another facet of the argument worth discussing is the FBI's use of the All Writs Act of 1789 to support its position. As Apple reminds us, the All Writs Act "is intended to enable the federal courts to fill in gaps in the law so they can exercise the authority they already possess." Regardless of changing times and technology, the government does need the ability to exercise important powers, and the All Writs Act ensures that.
However, Apple claims that act "does not grant the courts free-wheeling authority to change the substantive law, resolve policy disputes, or exercise new powers that Congress has not afforded them." Specifically to this case, Apple claims that the All Writs Act does not require the company to devote engineers to creating software that doesn't exist today.
Clearly, Apple is not only concerned about this particular phone, but about the security of its customer base and its continuing business. Creating a back door, Apple claims, would "create a crippled and insecure product. Once the process is created, it provides an avenue for criminals and foreign agents to access millions of iPhones." Additionally, some in the tech community have worried that the United States' surveillance program has hurt the reputation and bottom line of American technology companies already. If the general public starts to view the iPhone's security as weak and exploitable, Apple's business will suffer.
Finally, Apple worries about the precedent set by this court order. The company vigorously dismisses the FBI's claim that this is a one-time request as follows: "The government says: 'Just this once' and 'Just this phone.' But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts." Apple goes on to note that a number of government officials around the country have already announced that they would also seek to compel Apple through the courts to perform the same service.
Apple also thinks that this order could lead to even more dangerous invasions of privacy. The motion declares that "if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone's user? Nothing."
There's a lot more to analyze and discuss in the motion, but there's one detail in particular that will likely induce horrifying flashbacks to anyone who has provided technical support. Apple claims that if the FBI hadn't bungled the investigation to begin with, the court order the company is protesting wouldn't even be necessary. Apparently, the FBI changed the iCloud password associated with one of the attacker's acccounts. Had the agents allowed the phone to initiate an automatic iCloud back-up to a known Wi-Fi network, they could have purportedly obtained all the information they were looking for. Instead, the government acted without consulting Apple, and ended up taking the matter to court instead.
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