This post is part of "Apple v. FBI," a series of 6 posts. You can start at the beginning or see all posts in the series.

The Department of Justice has filed a motion to compel Apple’s compliance with last week’s unprecedented order requiring Apple to create hacking technology to assist in the criminal investigation of the San Bernadino terrorist attack.

In its motion, the DOJ offers a “compromise” of sorts, in that it offers that Apple can keep secret the technology it is being ordered to create. It seems that this offer is intended to quell the public outcry over privacy rights implicated by the court order

Unfortunately, what the DOJ fails to recognize in making this compromise is the order does far more than implicate privacy rights. It undermines basic underpinnings of American law and society. The order embraces the concept that the government can co-opt private enterprise and force it to divert its resources to government purpose. This is called nationalization, and we do not allow it in these United States of America. It just isn’t done.

The DOJ claims that all it is asking is for assistance in executing a warrant; it is doing far more than that. It is not asking a landlord to unlock the door to an apartment for which it has a warrant. It is asking Apple to invest untold amounts of money and resources into developing a product which does not at this time exist.

The DOJ attempts to paint Apple’s business as somehow insidious and untoward. It states in its motion that “Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which” is relevant to the investigation. The DOJ says this as if it is a bad thing. Yes, products built privately do control; and no, the government (which is really what the DOJ is referring to when it uses the word “law”) does not control. That is how it is in this great country.

To allow what is essentially the nationalization of Apple, even if limited to a specific purpose in this particular order, is to open the door to an entirely different way of life in the United States. This is not an overstatement. There are countries in the world where this is the standard, but we do not live in one of those societies.

Some members of the public perceive that the data the DOJ seeks will somehow identify other terrorists and unveil other terror plots. However, in its motion the DOJ says that the phone is believed to contain communications with the terrorists’ victims. That is much different than the phone potentially uncovering useful information to protect national security and dramatically undercuts any notion of Apple’s refusal to comply somehow endangering society.

The DOJ must see the difficulty in winning public support for the order in light of privacy rights, but this compromise fails miserably to address the real problem here. There is no compromise that can address it.

(As an interesting post script for all lawyers who have ever come across an unpublished opinion that they wish they could cite but did not because court rules generally prohibit it, the DOJ unabashedly states in its motion that it “is aware of multiple other unpublished orders” in support of its position. The DOJ’s lack of respect for the rule of law apparently knows no bounds.)

2016-02-25. Today, Apple filed its motion (pdf) to vacate the order, citing a number of reasons this order cannot withstand legal scrutiny. It really deserves a read. Among the motion’s highlights are:

  • Apple created a highly secure product which has been immensely popular in the market. In blatant viewpoint discrimination, the government seeks to force Apple to take a different approach in its products and instead produce a far less secure product.
  • There is no authority requiring an innocent third party to divert significant resources to the creation of an entirely new tool for law enforcement. Apple systematically reviews and distinguishes the government’s cited cases and makes clear that this is simply not like anything the government has done before.
  • Congress and the Executive Branch have debated legislating exactly what the FBI seeks here; they have been persuaded not to pursue that legislative solution to this problem. The court may not legislate by ex parte edict.
  • Apple includes several great quotes from FBI Director Comey about the need in a democratic society for robust debate on issues of privacy.
  • Answering a question many have posited in the last several days, Apple states that compliance with the order would require 6-10 Apple engineers’ nearly full time attention for a minimum of 2 weeks (and much more likely 4 weeks).
  • In order for evidence obtained from the phone following the hacking to be admissible, Apple would have to fully document its process and be prepared for extensive cross-examination of the process by a defense attorney in any criminal case in which the software was used.
  • If the FBI had simply asked Apple for help sooner, all of this could have been avoided. The FBI instructed the phone’s owner, the County of San Bernadino who issued the phone to the terrorist user, to reset the password on the iCloud account associated with the phone. This prevented the phone from automatically backing up to iCloud and giving the FBI the information it seeks. The FBI bungled its handling of the phone at the beginning, and it seeks this drastic remedy to fix its own error.
  • The code that the government seeks to compel Apple to write is speech, and the government is prohibited under the 1st Amendment to the U.S. Constitution from compelling speech.

As more information about law enforcement’s other cases in which they seek a iPhone hack comes out, it looks more and more like this is the government’s hand-picked test case for issues of cyber security. What better phone user as a guinea pig than a terrorist who did not even own the phone? The real arguments are set forth beautifully in Apple’s motion.

Read the next post in this series: "."

One Comment

  1. Publius says:

    I don’t have a well developed view on this case yet, but I object to your statement:

    To allow what is essentially the nationalization of Apple, even if limited to a specific purpose in this particular order, is to open the door to an entirely different way of life in the United States. This is not an overstatement.

    This is certainly an overstatement. No one is talking about nationalizing Apple. Rather, it reads like your attempt to shoehorn this case into an ideological paradigm, as do your overblown warnings about threats to our “way of life.”

    Yes, there are competing interests at stake in this case. But the government has pressed citizens into its service in much more demanding ways over the course of our history, including conscription, including using and damaging private property in the course of a stake-out, including seizures of private property, including vehicles and telephones, in cases of emergency, hot pursuit and during wartime, . I am not an expert, but I would be surprised if there were not numerous instances of private individuals and companies being pressed into service of one sort of another during World War II and at other times.

    If Apple loses this case, it would be a bummer for Apple. But it would not be a huge way of life for American citizens–that occurred already when we handed over our personal data to Apple, Google, Facebook and all the rest and lost exclusive control over our personal information and communications, including our lists of “friends,” and when the NSA ramped up its ability to monitor electronic communications passing between devices. Frankly, with regard to this case I am more concerned about the precedent for foreign governments seeking access to iPhones to repress their citizens than I am about the potential impact at home, where I am more confident that the government’s right to backdoor our phones could be subject to legal standards and review.

Leave a Reply