Apple filed another legal brief today in its standoff with the FBI over iPhone encryption, this time responding to a set of accusatory arguments made in a Justice Department brief last week.
Apple’s attorneys, speaking on a conference call with reporters Tuesday afternoon, said the government has misconstrued the All Writs Act, the 1789 legal statute being used as the legal footing for a February 16 court order won by the FBI. The order demands that Apple build a custom firmware that would disable security features in San Bernardino shooter Syed Farook’s iPhone, enabling law enforcement to break in.
The FBI believes Farook’s phone might contain information connecting the San Bernardino shooters to terrorist groups overseas. Apple believes that creating the custom software would create a security exposure that could end up endangering the security of millions of iPhones.
Apple asked the court to vacate the order on February 25.
Apple’s lawyers say the government is attempting to stretch the All Writs Act to empower the court far beyond what was intended by the Founding Fathers who wrote the act. Apple attorneys Bruce Sewell says in Tuesday’s filing that the All Writs Act can only be used by judges to make orders that are within the bounds of common law and statutes.
In its filing last week, the Justice Department disputed Apple’s argument that complying with the court order would be “unreasonably burdensome.” Apple, it said, has hundreds of engineers and lots of experience building software.
Sewell and company say the government misunderstood why Apple believes complying would be too burdensome. Apple has never claimed it didn’t have the resources to write the custom code requested by the FBI and the court, Sewell points out. Rather, he says, the burden is that the government is asking Apple to write and sign code it knows to be dangerous to users.
“The government seeks to commandeer Apple to design, create, test, and validate a new operating system that does not exist, and that Apple believes—with overwhelming support from the technology community and security experts—is too dangerous to create,” Apple says in the new brief.
The Justice Department filing to which Apple responded Tuesday was filed in response to Apple’s original request that the court vacate its original February 16 order compelling Apple to assist the FBI.
In that filing, the Justice Department repeated its claim that Apple is refusing to help the FBI access the Farook phone not because of real security concerns, but because of its marketing goals. One Apple lawyer called the claim “incendiary.” To rebut that claim, Apple includes an attachment in its Tuesday brief showing that Apple ran 1,793 advertisements worldwide since the introduction of iOS 8, and that none of them highlighted the security features of the OS.
The Apple attorneys were irked at a footnote in the Justice Department filing threatening that the government might compel Apple to turn over its source code and the electronic signature it uses to sign off on code. In other words, the crown jewels of the iOS ecosystem.
“The catastrophic security implications of that threat only highlight the government’s fundamental misunderstanding or reckless disregard of the technology at issue and the security risks implicated by its suggestion,” Apple says in Tuesday’s filing.
The Justice Department lawyers also suggested in last week’s filing that Apple has increased the security in iOS specifically to thwart government requests for information. The Apple attorneys stressed during the conference call Tuesday afternoon that the company is constantly adding new security features to keep up with the increasing sophistication of hackers and other bad actors.
The Apple attorneys repeated on the conference call that they don’t believe the government has a clear understanding of the technical aspects of encryption, and of the danger in creating a “back door” that would bypass security.
To underline this point, the Apple side used a 90-year-old quote from Justice Louis Brandeis. Brandeis, reflecting on the “progress of science” beyond wiretapping, warned that “[t]he greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”