They slipped it into a footnote, but the tremendous power of the DoJ cannot stay confined there for long. Footnote number nine of the government’s March 10th response to Apple states the following:
For the reasons discussed above, the FBI cannot itself modify the software on Farook’s iPhone without access to the source code and Apple’s private electronic signature. The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers.
See In re Under Seal, 749 F.3d 276, 281-83 (4th Cir. 2014) (affirming contempt sanctions imposed for failure to comply with order requiring the company to assist law enforcement with effecting a pen register on encrypted e-mail content which included producing private SSL encryption key). (DoJ, p22.)
The legal arguments Apple are trying to defend themselves with include using the First Amendment; by claiming that the DoJ are hoping to compel them to speak. Whether or not writing code counts as speech is the subject of fraught legal discussions.
Given that Apple has complied with court orders in the past one has to wonder what gives this time. Apple is demanding answers to broader questions of whether they have to unlock every iPhone in every instance- something that could potentially be possible with the code that the DoJ want. Whereas the DoJ are claiming that “future cases involving other iPhones will be decided on their specific facts” (p6).
DoJ “cheap shot.”
As legal battles go, this one has anger in it. Bruce Sewell, Apple’s top lawyer, called it a “cheap shot” during a conference call with members of the press. Unfortunately, LiquidVPN were not invited (maybe next time Apple? Contact us on here yeah?). Fortunately, The Verge were.
“The tone of the brief reads like an indictment. We’ve all heard director Comey and Attorney General Lynch thank Apple for its consistent help in working with law enforcement. Director Comey’s own statement…that there are no demons here? We certainly wouldn’t conclude it from this brief. In 30 years of practice, I don’t think I’ve ever seen a legal brief that was more intended to smear the other side with false accusations and innuendo, and less intended to focus on the real merits of the case. For the first time ever, we see an allegation that Apple has deliberately made changes to block law enforcement requests for access. This should be deeply offensive to everyone that reads it. An unsupported, unsubstantiated effort to vilify Apple rather than confront the issues in the case.
To do this in a brief before a magistrate judge just shows the desperation that the Department of Justice now feels. We would never respond in kind. But imagine Apple asking a court whether the FBI could be trusted because, there is this real question about whether J. Edgar Hoover ordered the assassination of Kennedy. See ConspiracyTheory.com as our supporting evidence. We add security features to protect our customers from hackers and criminals. And the FBI should be helping to support us in this because it keeps everyone safe. To suggest otherwise is demeaning. It cheapens the debate and it tries the mask the real and serious issues. I can only conclude that the DoJ is so desperate at this point that it has thrown all decorum to the winds.
Look, we know there are great people in the DoJ and the FBI. We work shoulder to shoulder with them all the time. That’s why this cheap shot brief surprises us so much. We help when we’re asked to. We’re honest about what we can and can’t do. Let’s at least treat one another with respect and get this case before the American people in a responsible way. We are going to court to exercise our legal rights. Everyone should beware, because it seems like disagreeing with the Department of Justice means you must be evil and anti-American. Nothing could be further from the truth.” – Bruce Sewell (The Verge)
Remember, March 22nd this thing goes back to court. Can’t wait.
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