Apple filed its final brief in the San Bernardino case, where the FBI tried to compel the company to write software on its behalf that would help the agency unlock the shooter’s encrypted iPhone. In the new filing, Apple fired back at the FBI for many of its “misleading” claims in the agency’s previous Court brief.
Setting The Precedent
The FBI has claimed that this case is not about setting a precedent, even though law enforcement across the country is waiting for this exact case to conclude in the FBI’s favor, so it can use the case as a precedent. Apple told the judge to consider the larger implications of this case, because it could affect national security, as other current or former government officials have stated.
"It has become crystal clear that this case is not about a ’modest’ order and a ‘single iPhone,’ as the FBI Director himself admitted when testifying before Congress two weeks ago...The broader question we’re talking about here goes far beyond phones or far beyond any case,” said Apple in the filing.
Debate Should Happen In Congress
The company also argued that this debate should happen in Congress, not in a court, because it’s a matter of whether people can live with the major repercussions that would follow for digital security if Apple was compelled to do what the FBI asked it to do. According to the company, the FBI believes that the All Writs Act allows it to compel any company or any person to do whatever it wants:
"The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is," said Apple in the filing. "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."
Apple Is Protected Under CALEA
Apple then explained to the court in the brief that the government is being misleading with its interpretation of the Communications Assistance for Law Enforcement Act (CALEA). According to the company, CALEA does protect it as an “electronic communications services” provider against being compelled to adopt “any specific design of equipment, facilities, services, features, or system configurations.”
The government was trying to say that the fact that iMessage and FaceTime exist on the iPhone is irrelevant, even though the main reason for wanting to unlock the device is to read the shooter’s messages.
Apple is also an “information services” provider, given iOS features such as iMessage, Mail, and FaceTime, which makes it immune under CALEA to any kind of compelled assistance.
“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,’” read Apple's filing. “If companies subject to CALEA’s obligations cannot be required to bear this burden, Congress surely did not intend to allow parties specifically exempted by CALEA (such as Apple) to be subjected to it. The government fails to address this truism.”
Apple then made another point that the executive branch of the government, including the FBI, have been trying for many years to update CALEA to expand the government’s powers to compel a company to aid in surveillance, but failed. Congress has rejected that plan, which shows that Congress, as representatives of the people, wants law enforcement to be limited in how much it can demand from a company.
High Burden To Comply
Apple also fought back against the government on the issue of how much of a burden its technical assistance would be for the company. The Justice Department argued in its latest filing that in a relatively similar 1979 case, it took the technician only one minute to modify a phone for interception. Therefore it shouldn’t take Apple that much time or money to modify its software either.
Apple noted how ridiculous it is to compare a simple phone from 1979 to having to modify a whole mobile operating system in 2016. The company also said that even back then, the Court wrote that “this holding is a narrow one, and our decision today should not be read to authorize the wholesale imposition upon private, third parties of duties pursuant to search warrants.” In other words, the government shouldn’t even try to use that case as precedent.
Apple Is Not Immune To Hacking
The company also attacked another one of the government’s absurd statements that “there is no reason to think that the code Apple writes in compliance with the Order will ever leave Apple’s possession.” The government here acted as if Apple has achieved some kind of unbreakable security, something every security expert knows is impossible, at a time when mega-breaches in large companies, not to mention the government’s own agencies, happen many times every year.
That statement from the government either shows that it is willing to be misleading to the Court to win this case, or as Apple stated, it “simply shows the government misunderstands the technology and the nature of the cyber-threat landscape.” Neither of which paint the government in a favorable light.
Apple also made a point about the never-ending need to constantly improve the security of its devices and services (which is also why there can never be a “balance” in security, as that would always be a moving target):
“I believe that Apple’s iOS platform is the most-attacked software platform in existence. Each time Apple closes one vulnerability, attackers work to find another,” said Apple engineer Erik Neuenschwander.“This is a constant and never-ending battle. Mr. Perino’s description of third-party efforts to circumvent Apple’s security demonstrates this point. And the protections that the government now asks Apple to compromise are the most security-critical software component of the iPhone—any vulnerability or back door, whether introduced intentionally or unintentionally, can represent a risk to all users of Apple devices simultaneously,” he added.
The company also said that once it creates a “GovtOS” image that can be installed on a single iPhone, that image could also be installed on any other iPhone, if hackers get their hands on it.
"No Backdoors" For Other Countries
In the Justice Department’s latest filing, the government argued that Apple had already made “special accommodations” for the Chinese government to allow it to unlock iPhones. However, Apple denies that and said that it uses the same standardized process to comply with local law enforcement everywhere. The company also reiterated that it has never built a backdoor for any government.
The U.S. government’s argument was also interesting because it’s also saying that if Apple were compelled to put backdoors in iPhones in the U.S., that wouldn’t necessarily mean other countries would ask for the same backdoor. Yet the argument it's making is that if China had a backdoor in iPhones, then the U.S. government should have it, too. There have also been reports that the Chinese government is hoping the U.S. government succeeds in this case, so that it can also compel Apple to do the same in China later.
Code Is Speech
Finally, Apple asserted that code is speech (an argument that has already won in Court multiple times) and that the government cannot compel it to alter its speech.
“Because writing code requires a choice of (1) language, (2) audience, and (3) syntax and vocabulary, as well as the creation of (4) data structures, (5) algorithms to manipulate and transform data, (6) detailed textual descriptions explaining what code is doing, and (7) methods of communicating information to the user, ‘there are a number of ways to write code to accomplish a given task.’ As such, code falls squarely within the First Amendment’s protection, as even the cases cited by the government acknowledge,” said Apple in its filing.“The code that the government is asking the Court to force Apple to write contains an extra layer of expression unique to this case. When Apple designed iOS 8, it consciously took a position on an issue of public importance.... The government disagrees with Apple’s position and asks this Court to compel Apple to write new code that reflects its own viewpoint - a viewpoint that is deeply offensive to Apple.”
The next Courtroom hearing will be on March 22, when the judge may decide one way or another in this case.
Save Security
Fight For The Future is one of the digital rights groups that has been supporting Apple in this case and has been organizing protests against the government from the beginning. The group has just launched a new “Save Security” campaign to raise awareness about the issue prior to Apple’s March 22 Court hearing.
“This case is not just about one phone, it’s about the future of safety and security for millions of people all over the world,” said Evan Greer, campaign director of Fight for the Future.“We’ll be outside the courthouse to make sure those people’s voices are heard, because what the government is trying to do in this case doesn’t just threaten our basic rights, it puts all of us in danger. Encryption protects our hospitals, airports, and water treatment facilities. Undermining security risks lives,” he added.
Lucian Armasu is a Contributing Writer for Tom's Hardware. You can follow him at @lucian_armasu.
