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Apple said Tuesday that the Justice Department is seeking an “all-powerful magic wand” in its attempt to compel the company to help unlock the San Bernardino, Calif., shooter’s iPhone and that “the Founders would be appalled.”
The legal battle between Apple and the Federal Bureau of Investigation over unlocking the work iPhone used by Syed Rizwan Farook, who with his wife killed 14 people in December, has turned into a national debate over security, surveillance and privacy.
The iPhone is locked with a passcode. Through a court order, the FBI asked Apple to write a new operating system that nixes several security features so they can load it onto the device and crack the password. Apple has asked the court to drop the order, and CEO Tim Cook called the FBI’s demand the software equivalent of cancer.
Here are the highlights of the company’s latest argument to the court. Apple lawyers and the FBI will make their cases before the U.S. District Court for the District of Central California at a hearing on March 22.
1. Even other federal intelligence officials don’t agree with the FBI.
Apple points out that U.S. Secretary of Defense Ashton Carter recently called encryption “essential.” Then the company cites Richard Clarke, the former national coordinator for security, infrastructure protection and counterterrorism. “They’re not as interested in solving the problem as they are in getting a legal precedent,” Clarke told NPR. “Every expert I know believes that NSA could crack this phone. They want the precedent that the government can compel a computer device manufacturer to allow the government in.”
2. The government is misconstruing laws and past cases to rewrite history.
“The government attempts to rewrite history by portrayed the [All Writs Act] as an all-powerful magic wand rather than the limited procedural tool it is,” Apple wrote. The All Writs Act is a 1789 catchall law that says federal courts may issue orders as they deem appropriate to fulfill their needs.
And in 2016, the Justice Department and Apple are fighting in footnotes over an 1807 case involving Aaron Burr. The government argued to the court last week that Chief Justice John Marshall once forced Aaron Burr’s clerk to “decipher a coded letter” that the third vice president had written after Burr was charged with treason. While the court asked Burr’s clerk whether he understood the letter, Apple says, it never forced him to decipher it.
(Legal nerds: Read the full filing for more details as to how Apple claims the government is misrepresenting several cases the Justice Department outlined to support its case.)
3. The government is lying about the fact that it wants to set precedent using this case.
The Justice Department’s court filings have repeatedly said the order seeks to access just one phone. FBI Director James Comey admitted on Capitol Hill that the case would set precedent he would seek to use to unlock future phones if Apple were forced to comply. Manhattan’s district attorney and other state and local officials have said they would follow the FBI’s example if it wins.
4. The government is making reckless accusations about Apple’s intent.
The government called Apple’s public refusal to obey the court order a marketing ploy. In a footnote in the latest court filing, Apple says since October 2014, it has produced 627 ads in the U.S. and 1,793 worldwide, but “not a single one advertised or promoted the ability of Apple’s software to block law enforcement requests for access to the contents of Apple devices.”
5. The government doesn’t understand technology, and if in fact it does, it’s playing dumb...
The government has argued to the court (and Comey has repeated on the Hill) that Apple is a big, powerful and successful tech company that knows how to keep the bad guys out, so if it wrote a software specifically for law enforcement, it would be able to keep it safe from criminals seeking to exploit it.
Apple says the idea that it would be able to keep any secret in a black box and safe forever shows that the government simply doesn’t understand how cybersecurity works.
It closes the argument with this zinger: “Almost 90 years ago, Justice Louis Brandeis, reflecting on the “progress of science” beyond wiretapping, famously warned that “[t]he greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
7. Forcing Apple to write new software that it finds “offensive” violates its First Amendment right to free speech.
Apple asked the court last month to drop its order partly because it says the company’s products represent its view. And the company considers data security to be a priority, so crafting a new product for investigators — particularly one that the company finds “deeply offensive” — violates its right to freedom of expression.
Apple said Tuesday that the Justice Department is seeking an “all-powerful magic wand” in its attempt to compel the company to help unlock the San Bernardino, Calif., shooter’s iPhone and that “the Founders would be appalled.”
The legal battle between Apple and the Federal Bureau of Investigation over unlocking the work iPhone used by Syed Rizwan Farook, who with his wife killed 14 people in December, has turned into a national debate over security, surveillance and privacy.
The iPhone is locked with a passcode. Through a court order, the FBI asked Apple to write a new operating system that nixes several security features so they can load it onto the device and crack the password. Apple has asked the court to drop the order, and CEO Tim Cook called the FBI’s demand the software equivalent of cancer.
Here are the highlights of the company’s latest argument to the court. Apple lawyers and the FBI will make their cases before the U.S. District Court for the District of Central California at a hearing on March 22.
1. Even other federal intelligence officials don’t agree with the FBI.
Apple points out that U.S. Secretary of Defense Ashton Carter recently called encryption “essential.” Then the company cites Richard Clarke, the former national coordinator for security, infrastructure protection and counterterrorism. “They’re not as interested in solving the problem as they are in getting a legal precedent,” Clarke told NPR. “Every expert I know believes that NSA could crack this phone. They want the precedent that the government can compel a computer device manufacturer to allow the government in.”
2. The government is misconstruing laws and past cases to rewrite history.
“The government attempts to rewrite history by portrayed the [All Writs Act] as an all-powerful magic wand rather than the limited procedural tool it is,” Apple wrote. The All Writs Act is a 1789 catchall law that says federal courts may issue orders as they deem appropriate to fulfill their needs.
And in 2016, the Justice Department and Apple are fighting in footnotes over an 1807 case involving Aaron Burr. The government argued to the court last week that Chief Justice John Marshall once forced Aaron Burr’s clerk to “decipher a coded letter” that the third vice president had written after Burr was charged with treason. While the court asked Burr’s clerk whether he understood the letter, Apple says, it never forced him to decipher it.
(Legal nerds: Read the full filing for more details as to how Apple claims the government is misrepresenting several cases the Justice Department outlined to support its case.)
3. The government is lying about the fact that it wants to set precedent using this case.
The Justice Department’s court filings have repeatedly said the order seeks to access just one phone. FBI Director James Comey admitted on Capitol Hill that the case would set precedent he would seek to use to unlock future phones if Apple were forced to comply. Manhattan’s district attorney and other state and local officials have said they would follow the FBI’s example if it wins.
4. The government is making reckless accusations about Apple’s intent.
The government called Apple’s public refusal to obey the court order a marketing ploy. In a footnote in the latest court filing, Apple says since October 2014, it has produced 627 ads in the U.S. and 1,793 worldwide, but “not a single one advertised or promoted the ability of Apple’s software to block law enforcement requests for access to the contents of Apple devices.”
5. The government doesn’t understand technology, and if in fact it does, it’s playing dumb...
The government has argued to the court (and Comey has repeated on the Hill) that Apple is a big, powerful and successful tech company that knows how to keep the bad guys out, so if it wrote a software specifically for law enforcement, it would be able to keep it safe from criminals seeking to exploit it.
Apple says the idea that it would be able to keep any secret in a black box and safe forever shows that the government simply doesn’t understand how cybersecurity works.
It closes the argument with this zinger: “Almost 90 years ago, Justice Louis Brandeis, reflecting on the “progress of science” beyond wiretapping, famously warned that “[t]he greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
7. Forcing Apple to write new software that it finds “offensive” violates its First Amendment right to free speech.
Apple asked the court last month to drop its order partly because it says the company’s products represent its view. And the company considers data security to be a priority, so crafting a new product for investigators — particularly one that the company finds “deeply offensive” — violates its right to freedom of expression.
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