Last week, Apple sent out a letter to its customers informing them of the FBI’s request to circumvent the encryption on a specific phone. The letter also indicated that Apple was going to fight the order rather than comply with it. Now, Apple has made good on its promise and filed a motion to vacate the order which compels Apple to assist the FBI. We can finally see what legal arguments Apple will rely on to make the case that they should not be forced to break the encryption on this phone.
In the introduction, Apple lays out the case that the precedent set in this case goes far beyond unlocking a single phone.
The government says: “Just this once” and “Just this phone.” But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts. And as news of this Court’s order broke last week, state and local officials publicly declared their intent to use the proposed operating system to open hundreds of other seized devices—in cases having nothing to do with terrorism. If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent.
The next section cites a three-part test established by the Supreme Court to determine when someone could be compelled to assist the government under the All Writs Act. The three parts are: that the subject of the order is not too far removed from the underlying controversy, that the order does not place undue burden on the subject, and that the government has no other way to execute its warrant without compelling the assistance of the third-party.
Apple claims that this order fails all three parts of the Supreme Court’s test. Apple claims to be too far removed from the controversy because, “Apple is a private company that does not own or possess the phone at issue, has no connection to the data that may or may not exist on the phone, and is not related in any way to the events giving rise to the investigation.”
Apple also claims that obeying the order would place an undue burden on the company for two reasons. First, because strong encryption is a major selling point, and being forced to undermine it would damage its reputation and hurt its business. Secondly, it would be an undue burden because cooperating with the FBI request would require Apple engineers to develop new software which currently doesn’t exist, and in the meantime they would be unable to fulfill their normal duties at the company.
Apple also claims the order fails the third part of the test, because the government has not shown that Apple’s assistance is required to execute the warrant. The FBI has not shown any evidence that the agency searched for alternative ways to get the information it was looking for. In fact the FBI may have removed one such alternative due to incompetence, when the agency reset the iCloud password for account associated with the phone’s owner. This prevented the phone from performing an automatic iCloud backup, which would have made it possible to retrieve the information without undermining the phone’s encryption. Apple concludes that the FBI has not sufficiently investigated alternative methods of retrieving the data, which would be required in order to compel the company’s assistance.
The brief also argues that this order violates the first amendment. Apple is able to cite numerous cases which uphold the fact that computer code is speech. Forcing apple to write software would be compelled speech. The courts have upheld that compelled speech would violate the first amendment, except in very narrow cases which serve a compelling state interest. Apple claims there is no compelling interest in this case, because investigators aren’t even sure if the phone has any useful information. On this point, the brief quotes from a post by FBI director James Comey who stated, “Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t.” Apple argues that the government cannot compel speech based on mere speculation that the phone may contain a clue.
Apple’s final argument is based on the fifth amendment. Apple claims that being forced by the government to write this software is so burdensome that it is being deprived of liberty without due process.
Is Apple in the right to fight this request by the FBI? Leave your comments below.