Apple has filed its latest brief in its ongoing legal battle against the FBI. This one is in direct response to a brief recently field by the Department of Justice. Apple heavily criticizes the broad interpretation of the All Writs Act presented by both the FBI and the DOJ. The Act grants courts the authority to compel third parties to assist in the execution of previously issued warrants, but the courts have always recognized limitations on the application of this law. Apple challenges the government's expansive interpretation of the law by stating:
The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is. As theorized by the government, the Act can authorize any and all relief except in two situations: (1) where Congress enacts a specific statute prohibiting the precise action (i.e., says a court may not “order a smartphone manufacturer to remove barriers to accessing stored data on a particular smartphone,” Opp. 11), or (2) where the government seeks to “arbitrarily dragoon” or “forcibly deputize” “random citizens” off the street. Opp. 5, 16. Thus, according to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up. The Founders would be appalled.
According to the brief, the All Writs Act simply regulates the process by which courts issue traditional common law writs, but it does not grant courts the authority, "to invent entirely new writs with no common law analog." Apple contends that an order compelling a private party to write software to assist an investigation has no common law analog. "Indeed, the Order is akin to an injunction directing specific performance of a personal services contract, a remedy the common law specifically disfavored," the brief argues.
Apple also argues that the FBI is trying to use the All Writs Act to sidestep the Communications Assistance for Law Enforcement Act (CALEA). The law states that electronic communication service providers cannot be forced by law enforcement to adopt "any specific design of equipment, facilities, services, features, or system configurations." Apple argues that it is an electronic communication service provider, and therefore can't be compelled to create a modified OS. Apple closes this section of the brief by stating, "Finally, CALEA makes clear that even telecommunications carriers (a category of providers subject to more intrusive requirements under CALEA, but which Apple is not) cannot be required to ensure the government’s ability to decrypt or to create decryption programs the company does not already possess."
Apple also expands on many of the arguments from its earlier brief, including the fact that Apple cannot be forced to obey this order under the All Writs Act because it is too far removed from the case and it would be an undue burden. Apple also reiterates its claims that this order would violate its first and fifth amendment rights.
Apple also responds to a footnote in the DOJ brief which argued that it might compel Apple to turn over its source code and signature. Apple responds in a footnote of its own stating, "The government also implicitly threatens that if Apple does not acquiesce, the government will seek to compel Apple to turn over its source code and private electronic signature. Opp. 22 n.9. 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."
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