Apple filed a motion in court on Thursday asking a judge to remove an order demanding the company help crack the iPhone belonging to one of the San Bernardino terrorists — arguing the order is not authorized under current law and, in any event, is unconstitutional.
"This is not a case about one isolated iPhone. Rather, this case is about the
Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld," the motion begins.
The government, through a court order, is demanding Apple build what the company considers a security-suppressing “backdoor” into the iPhone. This would require the creation of an entirely new operating system. Apple is challenging the order, but the government argues that Apple must comply.
The government has argued the new operating system it is asking Apple to create for the San Bernardino case could be destroyed after its use. In the Thursday filing, Apple's manager of user privacy, Erik Neuenschwander called that argument "fundamentally flawed" because "[t]he virtual world is not like the physical world" and making copies is "as easy as a computer key stroke."
In a conference call with reporters announcing the filing, Apple executives said that the filing was being made Thursday — a day before its deadline — to present its argument to the public as soon as it could do so. It is the first filing since the company brought on Gibson, Dunn & Crutcher lawyers Ted Olson and Ted Boutrous, along with others at the firm, to help in advancing their case against the government. Olson served as President George W. Bush's top lawyer at the Supreme Court, both in the disputed 2000 election and by serving as Solicitor General in the Bush administration.
"In short, the government wants to compel Apple to 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. And once developed for our government, it is only a matter of time before foreign governments demand the same tool," the brief states.
"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 argues both that the All Writs Act — the 1789 law being used by the government as providing the basis for the order — does not permit the sort of order requested in this case and that the government’s demands violate the company’s First Amendment rights and Fifth Amendment due process constitutional rights.
Apple executives, in the call and the briefing, also pointed to Washington, where the brewing controversy over encryption has drawn the attention of concerned lawmakers. Last fall, FBI Director James Comey told Congress that the Obama administration would not seek a legislative mandate forcing companies to alter or weaken their encryption products.
Apple executives maintain that the government's demands in the San Bernardino investigation have been made without Congress's approval, and contradict the Obama administration's earlier position, that no new legal authority on encryption should be created.
"The Executive Branch ultimately decided not to pursue [Communications Assistance for Law Enforcement Act] II, and Congress has left [the original] CALEA untouched, meaning that Congress never granted the authority the government now asserts," the company's lawyers argue.
In invoking the First Amendment, Apple's lawyers stated that "computer code is treated as speech within the meaning of the First Amendment" and that the court order would compel the company to express the government's views on consumer privacy, and not its own.
In its brief due process argument, the company argues that "conscripting" the company to help the government hack into the phone constitutes an "arbitrary deprivation of [its] liberty by government" in violation of constitutional due process guarantees.
In addition to the legal arguments, Apple provided two declarations — sworn statements — in the Thursday filing: one from Neuenschwander, Apple's user privacy manager, the other from Lisa Olle, Apple's manager of the Global Privacy & Law Enforcement Compliance Team.
In Neuenschwander's statement, he called the government's argument that the new iOS — called GovtOS in the filing — could be destroyed once its use is completed in the case to be "fundamentally flawed."
Additionally, he stated, "The government is asking Apple to do something that, to my knowledge, Apple has never done before. Accordingly, it is difficult to accurately predict exactly the work such a project would entail and how long it would take."
In Olle's statement, she stated that, if this order goes forward, it would be a significant effort for the company to fulfill the government orders in these cases, predicting the "Apple would likely create one or two secure facilities" to handle work on the devices and "would need to hire people whose sole function would be to assist" with the government orders.
After Apple's filing, Melanie Newman, a spokesperson for the Justice Department said that the government is reviewing Apple's arguments and will respond in court. "The Justice Department's response to investigating and prosecuting crimes has remained the same," she said. "The change has come in Apple's recent decision to reverse it's long-standing cooperation in complying with All Writs orders."
Read the fill motion here: