Apple warned Thursday that if the government successfully forces the company to help the FBI extract information from the iPhone of a dead terrorist, innocent people could be conscripted into all manner of work for the state, from executing prisoners to setting bait for criminals.
“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,” Apple’s lawyers wrote in a motion asking a federal judge to annul a search warrant that would compel the company to bypass a security feature on the phone used by Syed Rizwan Farook, who along with his wife killed 14 people in a mass shooting in San Bernardino, California, last year that was allegedly inspired by ISIS.
“For example, under the same legal theories advocated by the government here, the government could argue that it should be permitted to force citizens to do all manner of things ‘necessary’ to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant, or requiring a journalist to plant a false story in order to help lure out a fugitive, or forcing a software company to insert malicious code in its autoupdate process that makes it easier for the government to conduct court-ordered surveillance,” Apple argued.
From Apple’s perspective, the government is not just heading toward a slippery slope, but over a cliff.
At the center of Apple’s argument against what it describes as an alarming overreach by the government is the All Writs Act, a law that has been used to ensure that law enforcement authorities can carry out a court-issued search warrant. Apple says the statute is being inappropriately applied and that the Justice Department’s demands could herald a new era of government-enforced compliance.
“Indeed, under the government’s formulation, any party whose assistance is deemed ‘necessary’ by the government falls within the ambit of the All Writs Act and can be compelled to do anything the government needs to effectuate a lawful court order,” Apple argued. “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.”
Two U.S. officials who are not authorized to discuss the Apple case with journalists told The Daily Beast that Justice Department officials were confident that they would succeed in forcing Apple to help investigators extract information from the phone. But these officials also said they were uncomfortable relying on the All Writs Act, not because they think it’s an illegitimate law, but because Apple can mount a compelling case—mainly in the court of public opinion—that that law is being applied here with potentially dangerous consequences.
“The government’s reliance on the All Writs Act raises serious questions whether there’s an outer limit to what the government can ask a third party to do,” Mieke Eoyang, the vice president for the national security program at Third Way, a think tank in Washington, D.C., told The Daily Beast. “Apple may lay out hypotheticals that seem far-fetched, but the government isn’t setting out limiting principles here, so no one knows where the boundaries are.”
And there, it seems, is the heart of Apple’s strategy in the San Bernardino case. In painting dire hypotheticals about what the government insists is a narrow, technical question—whether Apple can be compelled to help the government inspect one iPhone—the company is making a far broader argument. At times, the motion seemed to be written not so much to win the argument in court—though Apple surely wants to do that—but to frame a public debate that will last for months, if not years, to come.
Apple has left no doubt this week that it intends to make a case in the court of public opinion. CEO Tim Cook has written about the company’s concerns on Apple’s website and in a letter to employees that was reprinted in the press. (That letter followed a blog post by FBI Director Jim Comey, who said, “The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice.”)
Cook also told an interview ABC News this week that forcing Apple to create the means to bypass a key security feature on the iPhone was the “software equivalent of cancer.”
“We think it’s bad news to write. We would never write it. We have never written it—and that is what is at stake here,” Cook said.
On Thursday morning, hours before Apple filed its motion, Comey told the House Intelligence Committee that the FBI was only asking Apple to help extract information from the iPhone used by the shooter, repeating his insistence that the government doesn’t seek a “back door” into the iPhone operating system used on millions of devices.
But in that testimony, Comey also acknowledged that the ruling in the San Bernardino case would have implications far beyond just one phone.
The decision “will guide how judges look at similar requests,” Comey said. But, he added, “The larger question isn’t going to be answered in the courts nor should it be.”
In that respect, Comey seemed to agree with Apple, which wrote in its motion that Congress, not courts, should decide matters of profound consequence for millions of people who use technology every day. Further, Apple argued, Congress had the opportunity to write a law that would require companies to assist the government with circumventing encryption technology, as the FBI wants to do in the San Bernardino case. But lawmakers chose not to act, and the Obama administration decided not to press the issue.
Apple pointed to a 1994 law known as the Communications Assistance for Law Enforcement Act (CALEA), which it said “made clear that a company has no obligation” to assist the government in decrypting communications when “the company does not retain a copy of the decryption key.”
Apple doesn’t know, nor can it discover, the passcode that Farook used on his phone. And the security feature that the FBI wants disabled would render the information on the phone inaccessible if someone incorrectly guesses the passcode 10 times. The FBI wants to turn that feature off and use a computer to make millions of passcode guesses rapidly until it lands on the right one.
Apple sees that as the “back door” that undermines the strong encryption technology at the heart of the iPhone operating system, which it said in the motion keeps people safe from “hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance.”
Eoyang said that technology companies have long understood what is and isn’t required of them under the 1994 law, and that the government now threatens to confuse the legal landscape using a much older statute.
“Industry thought that their obligations were clearly defined under CALEA, so reviving the All Writs Act from 1789 is introducing great uncertainty for not just Apple, but all kinds of tech companies,” Eoyang said.
Apple went a step further, and said that by backing away from passing a new law and “invoking ‘terrorism,’” the government “sought to cut off debate and circumvent thoughtful analysis.”