Apple Responds

Irreal readers are certainly aware of the latest drama playing out between the FBI and Apple. The FBI applied, ex parte, to a federal magistrate for an order compelling Apple to assist the FBI in breaking into an iPhone 5C used by one of the San Bernardino shooters. The magistrate granted the order and Apple promptly announced that it would appeal1.

It's important that Apple prevail because despite the government's disingenuous assurance that this is a one-time request dealing only with one phone, the point of the FBI's request is to establish a precedent. Indeed, the government has several more cases lined up and ready to go as soon as the case is resolved. Nationwide, there are probably hundreds of cases where prosecutors want Apple to break into phones.

Apple's public discussion of the case emphasized that complying would put the security of every iPhone user—something that Apple has worked very hard to secure—at risk. Irreal readers, I'm sure, will find that argument compelling but is it sufficient to quash the magistrate's order?

We needn't have worried. Apple has filed their motion to vacate the order and it seems to me—speaking as a non-lawyer—to be devastating to the government's case. To me—again, speaking as a layman—Apple's most persuasive argument was that the All Writs Act, which the government depends on to justify their action, does not apply in this case because

  1. the Congress already considered the matter and refused to act, and
  2. that complying does, in fact, represent a significant burden on Apple.

On the second point, Apple pointed out that after the initial effort2, once the precedent is set they will receive a flood of similar applications and that will require hiring additional full-time staff to deal with them. Furthermore, they can't, as the Government suggests, simply destroy the break-in software after the data is recovered because they may be called in some future trial to testify on their methods and procedures and to produce the software as evidence.

Apple already has significant legal and engineering staff dedicated to dealing with government requests for data and they understand the need to document each step they take and to establish a chain of custody for any hardware they work on. They make a good case that complying with the order will result in a significant and ongoing burden.

There's plenty more and you really should read Apple's brief. It's entertaining and instructive even if you aren't a lawyer. If you don't have time for the brief itself, The Intercept_ has an excellent summary of the important points it raises. The Intercept_ describes the brief as “a legal motion for the ages.”

Footnotes:

1

The press, of course, characterized this as Apple putting itself above the law but by refusing to roll over for the government and appealing, Apple is, in fact, following the law.

2

Apple estimates 10 engineers and related personnel for 2 to 4 weeks. That's probably already more effort than the All Writs acts contemplated.

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