Apple to argue First Amendment rights in FBI decryption battle
As expected, Apple intends to argue its First Amendment rights as part of a multi-pronged legal strategy designed to flout a court order compelling the company unlock an iPhone linked to last year's San Bernardino shootings.
Theodore Boutrous, Jr., one of two high-profile attorneys Apple hired to handle its case, said a federal judge overstepped her bounds in granting an FBI motion that would force the company to create a software workaround capable of breaking iOS encryption, reports the Los Angeles Times.
Specifically, U.S. Magistrate Judge Sheri Pym last week ordered Apple to help FBI efforts in unlocking an iPhone 5c used by San Bernardino shooting suspect Syed Rizwan Farook, a directive that entails architecting a bypass to an iOS passcode counter. Government lawyers cited the All Writs Act of 1789 as a legal foundation for its request, a statute leveraged by the FBI in at least nine other cases involving iOS devices.
While the act itself is 227 years old, lawmakers have updated the document to cover a variety of modern concerns, most recently as applied to anti-terrorism operations. In essence, All Writs is a purposely open-ended edict designed to imbue federal courts with the power to issue orders when other judicial tools are unavailable.
A 1977 Supreme Court reading of the All Writs Act is often cited by law enforcement agencies to compel cooperation, as the decision authorized an order that forced a phone company's assistance in a surveillance operation. In Apple's case, however, there is no existing technology or forensics tool that can fulfill the FBI's ask, meaning Apple would have to write such code from scratch.
"The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech," Boutrous told The Times. "It is not appropriate for the government to obtain through the courts what they couldn't get through the legislative process."
Boutrous intimated that the federal court system has already ruled in favor of treating computer code as speech. In 1999, a three-judge panel of the 9th U.S. Circuit Court of Appeals, which covers California, ruled that source code relating to an encryption system was indeed protected under the umbrella of free speech. That opinion was later rendered moot, however, meaning there is no direct legal precedent to support Apple's arguments.
The comments expressed by Boutrous echo those of Apple CEO Tim Cook, who earlier this week called for the government to drop its demands and instead form a commission or panel of experts "to discuss the implications for law enforcement, national security, privacy and personal freedoms."
Apple is scheduled to file its response to last week's order on Friday.
Theodore Boutrous, Jr., one of two high-profile attorneys Apple hired to handle its case, said a federal judge overstepped her bounds in granting an FBI motion that would force the company to create a software workaround capable of breaking iOS encryption, reports the Los Angeles Times.
Specifically, U.S. Magistrate Judge Sheri Pym last week ordered Apple to help FBI efforts in unlocking an iPhone 5c used by San Bernardino shooting suspect Syed Rizwan Farook, a directive that entails architecting a bypass to an iOS passcode counter. Government lawyers cited the All Writs Act of 1789 as a legal foundation for its request, a statute leveraged by the FBI in at least nine other cases involving iOS devices.
While the act itself is 227 years old, lawmakers have updated the document to cover a variety of modern concerns, most recently as applied to anti-terrorism operations. In essence, All Writs is a purposely open-ended edict designed to imbue federal courts with the power to issue orders when other judicial tools are unavailable.
A 1977 Supreme Court reading of the All Writs Act is often cited by law enforcement agencies to compel cooperation, as the decision authorized an order that forced a phone company's assistance in a surveillance operation. In Apple's case, however, there is no existing technology or forensics tool that can fulfill the FBI's ask, meaning Apple would have to write such code from scratch.
"The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech," Boutrous told The Times. "It is not appropriate for the government to obtain through the courts what they couldn't get through the legislative process."
Boutrous intimated that the federal court system has already ruled in favor of treating computer code as speech. In 1999, a three-judge panel of the 9th U.S. Circuit Court of Appeals, which covers California, ruled that source code relating to an encryption system was indeed protected under the umbrella of free speech. That opinion was later rendered moot, however, meaning there is no direct legal precedent to support Apple's arguments.
The comments expressed by Boutrous echo those of Apple CEO Tim Cook, who earlier this week called for the government to drop its demands and instead form a commission or panel of experts "to discuss the implications for law enforcement, national security, privacy and personal freedoms."
Apple is scheduled to file its response to last week's order on Friday.
Comments
Do you know this? The NSA, CIA or FBI could break into a single iPhone?
Its not ridiculous and there are plenty of precedents in a whole bunch of 'private' industries including telecommunications. That is why apple will lose. I remember when the Swiss when faced with massive international pressure to open banking records to court orders complained "This will cause worldwide chaos and could destroy the Swiss banking industry". it did not happen.
All Apple is doing is crying wolf. They are using this as a brand and marketing lever. That is all. Their fear mongering is kind of a laugh. You do not have this issue with Android phones (of which there are many more worldwide) and civilization has not ended.
Tim Cook is not as smart or savy as he makes out. Bill Gates is proving to be wise....and Mark Zuckerberg is a hypocritical moron. Zuck backing apple when his company is one of the worst examples of privacy invasion the world has ever seen.
The FBI already solved this case of domestic terrorism. With all the data they have from the two terrorist, their families and the person that supplied the guns, phone records, CC records, FB posting, Google searches, e-mails, computers, etc., they have come to the conclusion that the two terrorist were acting on their own and they are now dead. With all this data, they have no proof that there are any other terrorist involve. So why do you think that the data of the last month and half that he owned this phone will solve this case? It was his work issued phone linked to a government IT department. He would not have used this phone for any of his terrorist activities and would had destroyed it, along with his two other phones (and computer HD), if he did.
http://www.latimes.com/local/lanow/la-me-ln-shooters-planned-san-bernardino-massacre-alone-no-link-seen-to-terror-cell-fbi-says-20151204-story.html
The FBI is now using to this phone for other motives that has nothing to do with trying to solve this crime of domestic terrorism.
Bill Gates and you are not proving to be wise.