Apple get by to keep its cool on Tuesday when replying tothe political science ’s last , rather incendiary , briefing . In its response to Judge Pym , Apple position out its legal arguments for refusing to abide by withthe FBI ’s requestfor assistance in breaking into the iPhone 5c of San Bernardino shooter Syed Rizwan Farook .
Apple also vigorously defended itself against the government ’s title that the company made Io more secure in a deliberate attempt to thwart police enforcement , or as a marketing decisiveness , even submit supplementary declarations from Craig Federighi and a senior director of world-wide advertising . It ’ll be interesting to see what issues are emphasized at the hearing , because right now it does n’t seem like Apple and the Department of Justice see eye to optic on , well , pretty much anything .
Here ’s a sum-up of Apple ’s brief , which will be its last word before the first auditory sense , scheduled for March 22 at 1 pm PST .
The All Writs Act is inappropriate
The royal court ’s order of magnitude for Apple to make a new version of iOS that would be well-situated for the FBI to crack was egress under the All Writs Act , a legal philosophy first passed in the late eighteenth century . This act take into account courts to emerge warrants that are n’t authorise by more specific legal philosophy . But in this casing , Apple argues , there is a more specific law called CALEA that ca n’t be stretched to go the government ’s request . Apple also argues thatCongress had a chanceto pass even more specific legislation , but declined to move .
fundamentally , Apple sound out the political science is endeavor to use the All Writs Act to authorize anything the government want that is n’t aleady on the Koran as being illegal .
The governance undertake to rewrite history by portraying the [ All Writs ] Act as an all - powerful witching wand rather than the restrain procedural creature that it is . … According to the government , short of kidnapping or breaking an express natural law , the courts can order private parties to do well-nigh anything the Justice Department and FBI can dream up . The Founders would be appalled .
Nobody but the FBI thinks this is a good idea
While Apple ’s legal brief focuses on the natural law , it does n’t ignore the broader setting of the encryption debate . This is bigger than the FBI and Apple dissent about if and how to break into Farook ’s iPhone , in other words , and even top official thatusedto work for the government can see the risk .
“ Indeed , the Justice Department and FBI are asking this Court to adopt their perspective even though legion current and former interior security and intelligence operation official flatly disagree with them , ” reads Apple ’s filing . It goes on to quote several from the community , including former NSA and CIA Director Michael Hayden , who said , “ America is more secure — America is more secure — with unbreakable death - to - end encryption . ”
The filing also points out that if Apple is thrust to weaken its own encoding , material criminals will just seek out other encoding cock . It quotes FBI Director James Comey , who say at a recent Congressional sense of hearing , “ encoding will always be available to regretful actors . ” At the same audition , the filing notes , Professor Susan Landau jibe that the Holy Order “ would weaken us but not change [ the availability of substantial encryption ] for the bad hombre . ”
Apple also disapprove the authorities ’s insistence that this GovtOS could be made , test , used once , and destroyed without ever catch out . The filing quotes cybersecurity experts both in and out of the government activity as sound out that plainly is n’t truthful , that hackers are always search to overwork these form of weaknesses . One footnote even cites the Mac ransomware attack from just last calendar week , in which malicous software was even cryptographically signed to fob Macs into thinking it was legit .
There’s no limiting principle
Good laws derive with limit . In its former move to dismiss the court of justice monastic order , Apple complained that the All Writs Act , since it ’s design to fill in the gap between statutes , does n’t have that throttle rule . So if the politics is allowed to utilize the All Writs Act to obligate Apple to write a new , crackable version of iOS , this could be precedent for even more alarming scenarios . A drug companionship be compelled to make lethal injection drug against its wishing , for exemplar , or Apple could be oblige to make a version of iOS that would allow the government to traverse a single speech sound ’s location or habituate it to listen in . If the All Writs Act really is a wizard wand , let ’s see what it can do , right ?
In this new filing , Apple notes that in the DOJ ’s last brief , it did n’t extend to Apple ’s hypotheticals with a 10 - foot effectual pole . “ Indeed , it is telling that the government betray even to face the hypotheticals posed to it ( for example compelling a pharmaceutical company to fabricate lethal injectant drugs ) , or explain how there is any conceivable day between GovtOS today , and LocationTrackingOS or EavesdropOS tomorrow . ”
( In fact , that is n’t strictly supposititious — one of Apple ’s footnotes summon a Texas pillowcase in which court of law would n’t allow the government to cut a vehicle ’s OnStar system to take photos and account its location . “ The government is skillful at devising new surveillance technique , ” Apple notes dryly , withso lead us out of it , pleaseleft unspoken . )
The All Writs Act can’t circumvent CALEA
CALEA , or the Communication Assistance for Law Enforcement Act , was passed in 1994 to require telecom carriers to attend the administration with some wiretapping and surveillance . Since then , it ’s been expanded to cover cyberspace and VoIP dealings as well . Apple ’s abbreviated read :
CALEA defines the circumstances under which individual companies must make systems to assist police force enforcement in its investigatory endeavour , as well as the circumstances where such providers are not and can not be required to build programs and systems to enable constabulary enforcement approach .
In other password , CALEA has restrain principle . That ’s good since those boundary came from Congress , and they give the lawyer a framework for their argument .
To put a finer peak on it , since the sound in question was furnish by his employer , it ’s very likely that his employer required him to utilise a passcode — which his employer could have easy reset at any time by usingeven the most basic of multi - gadget managment practice .
And to put an even finer point on it , while Apple is a “ communication company ” under CALEA , it is not lawfully view a “ telecommunications carrier , ” and so the speech about carriers not being responsible for decrypting does n’t apply to Apple . So , the filing argues , “ If fellowship subject to CALEA ’s obligations can not be involve to suffer this burden , Congress surely did not intend to allow parties specifically exempted by CALEA ( such as Apple ) to be subjected to it . ”
In fact , when CALEA was passed , this very question came up in the debate . From Apple ’s filing :
During congressional hearing on CALEA , then - FBI director Louis Freeh assure Senator Leahy that CALEA would not close up the increase of newfangled technologies . When Senator Leahy asked whether CALEA would inhibit the growth of encryption , he reply , “ this legislation does not enquire [ companies ] to decrypt . It just tells them to give us the bits as they have them . If they are [ en]crypted , that is my trouble . ”
