On March 10, Department of Justice prosecutors filed this hotly-worded motion in an attempt to compel Apple to unlock an iPhone connected to the San Bernardino shooting. The government’s legal team went in hard, essentially saying that Apple was being un-American for resisting.
Apple’s general counsel, Bruce Sewell, hit back immediately, blasting the DoJ’s motion as a “cheap shot” in a smear campaign against his company.
And today, the rest of Apple’s legal team got in on the action, filing this scathing brief.
The core of the government’s March 10 motion rests on the All Writs Act of 1789, a statute that gives a court (like the one trying the Apple case) the power to issue whatever “writs,” or formal orders, it needs to, as long as its “agreeable to the usages and principles of law.”
The United States District Court, Central District, Eastern Division, where the landmark case is being tried, has ordered Apple to modify its software to disable the passcode lockout security feature, which would let the government force its way into the shooter’s iPhone, despite the fact that legal experts say there might not be anything of value to an investigation on it.
Apple’s response: Nope.
Apple wasted little time and dispensed with Zinger Number 1, which took the carpool-lane on-ramp to the high road and essentially called the government’s legal team tiny children at the same time.
Apple intended to “focus on the facts and the law,” which leads us directly to Zingers Number Two and Three* in which Apple thrashes the government’s interpretation of the All Writs Act. In its motion, the Department of Justice writes that the AWA was a “broad and flexible … means of insuring that [the courts’] lawful warrants were not thwarted by third parties like Apple.”
In the first paragraphs of their response, Apple brought out the zing, shaming the government for overstepping the bounds of its power, saying that “the Founders would be appalled.”
Apple’s second half of the double-header-zinger pointed out that wishing doesn’t make it so, either.
The wishful thinking line is the zinger, but Apple backed it up, too, citing multiple court cases where the AWA hadn’t been enough to compel its intended target to fall in line.
Citing precedent leads us to Zinger Number Four, in which Apple straight-up calls out the prosecution for actually misquoting one of the cases it cited. It’s not so much a zinger as it is one of those triumphant moments where you whip out your phone and Wikipedia the obscure Harry Potter trivia item your frenemy insisted they were right about and finds out that they were wrong.
The legalese is a bit confusing, but essentially what happened was the government claimed that the “operation of” the AWA as a whole shouldn’t be limited to what it could originally do in 1789 (when it was first drafted), because times and circumstances change. But what Bank of the United States v Halstead actually said was that courts could adapt the “operation of an execution”, i.e., how the writ was physically carried out and enforced, usually by a U.S. Marshall.
Basically, as times changed, a court could change how it had its cops hand out writs, not what it could hand out writs for.
The cornerstone of Apple’s defense, which maintains that writing code to disable its security feature would compromise the integrity of the entire device, rests on the Communications Assistance for Law Enforcement Act, a 1994 wiretapping law that allows the government access to many forms of communication, with proper warrants and in the right conditions. CALEA does not, however, permit the government to force any “electronic communications services” (like Apple, who provide the FaceTime and iMessage services) to write any new code granting access to those services.
Behold, Zinger Number Five, wherein Apple confronts the government with its own logic.
That’s right, directly after insisting that it weren’t asking for Apple to create new code to let them into FaceTime and iMessage, the government asked Apple to create new code to let it into FaceTime and iMessage.
At this point, things were starting to get embarrassing, and people on Twitter noticed.
Edward Snowden chimed in too, once again adding insult to injury for the beleaguered government team.
The government isn’t enjoying a lot of public support at the moment, with trend-setters like John Oliver lampooning its efforts to bend Apple to its will as both feeble and potentially dangerous. If it wants to make a legitimate case for breaking encryption on one of the most popular smartphones in the world, it’s going to have to step up its legal game.