This afternoon Apple posted a motion in response to the order brought by the court on behalf of the FBI:
APPLE INC’S MOTION TO VACATE ORDER COMPELLING APPLE INC. TO ASSIST AGENTS IN SEARCH, AND OPPOSITION TO GOVERNMENT’S MOTION TO COMPEL ASSISTANCE
You can read the entire document if you’re interested.
What I find brilliant about this particular motion is that it’s clearly written in a manner meant to be quoted from. Some sections almost read as a collection of sound bites more than a legal argument. That said, make no mistake, this is a thorough dressing-down of the FBI’s request.
Below you’ll find my favorite quotes from the document.
In fact, no court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it.
In short, the government wants to compel Apple to create a crippled and insecure product.
Finally, given the government’s boundless interpretation of the All Writs Act, it is hard to conceive of any limits on the orders the government could obtain in the future. For example, if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user? Nothing.
Moreover, this is the only case in counsel’s memory in which an FBI Director has blogged in real-time about pending litigation, suggesting that the government does not believe the data on the phone will yield critical evidence about other suspects.
A. The All Writs Act Does Not Provide A Basis To Conscript Apple To Create Software Enabling The Government To Hack Into iPhones.
Moreover, federal courts themselves have never recognized an inherent authority to order non-parties to become de facto government agents in ongoing criminal investigations. Because the Order is not grounded in any duly enacted rule or statute, and goes well beyond the very limited powers afforded by Article III of the Constitution and the All Writs Act, it must be vacated.
If the government can invoke the All Writs Act to compel Apple to create a special operating system that undermines important security measures on the iPhone, it could argue in future cases that the courts should compel Apple to create a version to track the location of suspects, or secretly use the iPhone’s microphone and camera to record sound and video. And if it succeeds here against Apple, there is no reason why the government could not deploy its new authority to compel other innocent and unrelated third-parties to do its bidding in the name of law enforcement.
While these sweeping powers might be nice to have from the government’s perspective, they simply are not authorized by law and would violate the Constitution.
Moreover, responding to these demands would effectively require Apple to create full-time positions in a new “hacking” department to service government requests and to develop new versions of the back door software every time iOS changes, and it would require Apple engineers to testify about this back door as government witnesses at trial.
Moreover, the government has not made any showing that it sought or received technical assistance from other federal agencies with expertise in digital forensics, which assistance might obviate the need to conscript Apple to create the back door it now seeks.
Under well-settled law, computer code is treated as speech within the meaning of the First Amendment.
The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views. This is, in every sense of the term, viewpoint discrimination that violates the First Amendment.
If the government did have any leads on additional suspects, it is inconceivable that it would have filed pleadings on the public record, blogged, and issued press releases discussing the details of the situation, thereby thwarting its own efforts to apprehend the criminals. See Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 218-19 (1979) (“We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. . . . [I]f preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. . . . There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment.”).
In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’”
For example, society does not tolerate violations of the Fifth Amendment privilege against self-incrimination, even though more criminals would be convicted if the government could compel their confessions. Nor does society tolerate violations of the Fourth Amendment, even though the government could more easily obtain critical evidence if given free rein to conduct warrantless searches and seizures. At every level of our legal system—from the Constitution,28 to our statutes,29 common law,30 rules,31 and even the Department of Justice’s own policies32—society has acted to preserve certain rights at the expense of burdening law enforcement’s interest in investigating crimes and bringing criminals to justice.