Apple Files Motion To Vacate The Court Order To Force It To Unlock iPhone, Citing Constitutional Free Speech Rights

In a discussion with Apple executives today, TechCrunch was informed that Apple had filed a Motion to Vacate in the case of the FBI compelling Apple to assist in unlocking an iPhone belonging to Syed Farook.

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The executive said that ‘within hours’ Apple had provided the information requested by the government on December 6th and again on December 16th, and that it cooperated again on January 22 (responded to on the 26th).

Apple says that it would have to create a ‘Government OS’ or GovtOS, for the FBI in order to cooperate with the FBI. It would also need to create an FBI forensics lab on site that Apple says could likely be used to unlock iPhones in the future, which law enforcement officials have already indicated in public statements.

In the motion, Apple hinges its argument on the fact that the FBI is attempting to greatly expand the use of the All Writs Act:

No court has ever granted the government power to force companies like Apple to weaken its security systems to facilitate the government’s access to private individuals’ information. The All Writs Act does not support such sweeping use of judicial power, and the First and Fifth Amendments to the Constitution forbid it.

On February 16th, Apple says that the FBI filed an order with the court that required Apple to create this software and within hours the court had granted the request. Apple re-stated that it had no warning or communication from the government before the order was published.

“In order to comply with the Gov’t demands, Apple would need to create a new “GovtOS” and FBI forensics lab on site that has the potential to be used on hundreds of phones now in law enforcements possession in conflict with existing law as well as the First and Fifth Amendment of the United States Constitution,” says Apple in the act.

Apple also states that the request violates Apple’s constitutional rights.

The demand violates Apple’s First Amendment rights against compelled speech and viewpoint discrimination. Apple wrote code for its operating system that reflects Apple’s strong view about consumer security and privacy. By forcing Apple to write software that would undermine those values, the government seeks to compel Apple’s speech and to force Apple to express the government’s viewpoint on security and privacy instead of its own.

The government’s demand also violates Apple’s Fifth Amendment right to be free from arbitrary deprivation of its liberties in that it would conscript Apple to develop software that undermines the security mechanisms of its own products.

Microsoft said today that it will file an amicus brief with the courts to support Apple in its battle with the government. At a congressional hearing today, its Chief Legal Officer Brad Smith said that the case has implications for others.

Apple says that it expects more companies to file amicus support for its efforts to oppose the order.

Background

Apple is currently in a war of both court orders and public opinion in the case of a locked iPhone. The FBI wants Apple to build a special version of iOS that would weaken the device’s security and install it on the device. This version of iOS would allow the FBI to ‘brute force’ the device’s pin code by trying it hundreds or thousands of times without delay or the device erasing itself.

The FBI argues that this is a very specific request, for a specific device that is associated with Syed Farook, one of the shooters in the San Bernardino workplace violence incident which left 14 dead. The FBI has deemed Farook and his wife terrorists and says that it needs access to the device in order to pursue leads.

Apple, for its part, argues that the FBI is using the All Writs Act, a 200-year-old law, too broadly in trying to get it to write code that would make the security of its devices worse. Apple plans to argue that the court’s order violates its free speech rights and CEO Tim Cook has given an extensive interview laying out how Apple looks at the case. In his remarks, he expounded on the points which Apple has been talking about to reporters, the most pointed of which is that this is not about just ‘one iPhone’ and any ruling would be used to force Apple to unlock customer phones again and again.

The implications of the case are wide ranging. The security of customer data in the united states, as well as the millions of Apple devices around the world will hinge on how the court battle turns out. There are solid indications that if the FBI does gain access to the device, it will issue another order to then have Apple decrypt the device’s contents. Law enforcement officials have indicated that they have a long list of devices that they would take advantage of a precedent set here to force Apple to unlock.

Reports also indicate that Apple is making plans to improve iPhone and iCloud security to the point at which it will no longer be able to comply with government requests for information. These plans were hinted at in our discussion with Apple Executives last week, where we noted that “the executive also indicated that it was fair to anticipate that Apple would continue to harden iPhone security to protect users against this kind of cracking, whether by Apple or otherwise.”

It’s worth noting that Apple has had a long history of cooperating with law enforcement requests for information. While it has not unlocked iPhones, it has extracted data from phones.

Those other cases could include legislation or further orders that weaken or alter the ground rules for encryption on devices from phones to smart home units to pretty much anything with an internet connection. If you use any such device to communicate over the internet, it is likely that it uses encryption. If advocates are able to pass legislation that weakens encryption by giving the US government a ‘back door’, then it is a matter of time before foreign countries push for the same from companies that do business there — and before bad actors like hackers discover the door and use it for themselves.

FBI Director James Comey and Apple General Counsel Bruce Sewell are set to testify on encryption at a March 1 congressional hearing.

The motion to vacate is below:

Apple Motion to Vacate Brief and Supporting Declarations (1)

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