Last week, Apple stepped up its public response to the FBI’s court order demanding that the company develop an iPhone hacking tool that would enable the FBI to brute force the passcode used on the county-provided iPhone of one of the attackers in the San Bernardino terrorism case. Apple hired some high-profile defense lawyers, who immediately began making the company’s case to the media. CEO Tim Cook gave a lengthy interview to ABC News, and the end of the week saw Apple’s carefully argued response to the court order — it’s a must-read. Finally, in a similar case in New York State, a new ruling casts doubt on the use of the All Writs Act to compel Apple to bypass iPhone security. Much has happened since the FBI chose to put Apple in the hot seat, and more will undoubtedly be revealed in coming weeks. Here’s what you may have missed.
Apple to Adopt a First Amendment Defense Against FBI Court Order -- Theodore J. Boutrous, a high-profile lawyer retained by Apple in its legal battle with the FBI, has said that the company’s defense will focus on how the FBI’s court order attempts to compel Apple to create a new version of iOS. Since the writing of computer code has been recognized as a form of speech, Boutrous will argue that the government is trying to compel speech, something that the U.S. Supreme Court has said violates First Amendment rights. (In the 1943 case of West Virginia Board of Education v. Barnette, the Court ruled that students could not be compelled to salute the flag or recite the Pledge of Allegiance.) In related news, Apple has also hired former Solicitor General Ted Olson for its defense team. Olson served as Solicitor General under President George W. Bush, and his wife Barbara Olson died when American Airlines Flight 77 crashed into the Pentagon during the 9/11 attacks, giving him a personal stake in the tension between civil liberties and security. NPR News interviewed the star conservative lawyer, who asked, “What in the law requires us to redesign the iPhone, to rewrite code, to provide an Achilles’ heel in the iPhone?”
In ABC News Interview, Tim Cook Calls FBI Request the “Equivalent of Cancer” -- Apple continues to make its case against the FBI, with the latest salvo coming from CEO Tim Cook in a 30-minute interview with ABC News. Cook does a good job explaining away many of the misconceptions in the case. Anyone interested in this topic should listen to the interview, which runs first in an 8-minute abbreviated version, followed by the full-length conversation with ABC’s David Muir.
Apple Facing More Government Demands to Unlock iPhones -- Although the FBI has claimed repeatedly that the request for Apple to help unlock an iPhone used by one of the attackers in the San Bernardino terrorism case is just about one iPhone, Apple has revealed that it has received a number of other requests from law enforcement for similar services, and is fighting the government’s demands in seven of the nine cases. This lends credence to Apple’s argument that the FBI’s larger agenda is to compel the company to bypass iPhone security generally, not just for this one iPhone.
Apple to Treat Itself as a Security Risk -- The New York Times says an anonymous source close to Apple confirmed that the company is working to block the technical hole that enables the FBI’s request for a custom version of iOS. What’s unusual about this vulnerability is that it could be exploited only by Apple’s iOS engineering team, leading security experts to suggest that Apple must now view itself as a security risk. The only question is how long it will take Apple to implement a level of security that will stymie even its own engineers.
Apple Pulls No Punches in Response to FBI Court Order -- Apple has now filed its response to the FBI’s court order demanding that the company write a custom version of iOS that would enable the FBI to brute force an iPhone’s passcode. This document is far from being a dry recitation of legal technicalities — instead, it provides a clear, careful, and complete rebuttal of every statement the government has made. It even calls out those government claims that are patently untrue. The Intercept has extracted eight memorable passages everyone should see, and if you have the time, read the full document (linked at the top of The Intercept piece).
New York State Judge Denies Government in Similar iPhone Case -- In a drug-trafficking case in New York State where the government sought to use the All Writs Act of 1789 to compel Apple to bypass the passcode security on an iPhone, Judge James Orenstein has denied the government’s request. Although this case differs in some ways from the San Bernardino terrorism case in which the FBI is trying to compel Apple to unlock an iPhone, both cases rely on the All Writs Act. Judge Orenstein found that the government failed to establish that the All Writs Act permits the relief it seeks. He also wrote that Apple was not sufficiently close to the criminal conduct and related investigation, that the burden imposed on Apple would be too high, and that it was unclear that the government even needed Apple’s help. In a world where legal precedent is important, Judge Orenstein’s ruling stands to support Apple’s position in other cases, at least until it’s appealed to a higher court.