Decryption? Not our future

As expected, Apple has filed a motion to vacate a federal court order that would require it to assist the FBI in unlocking an iPhone linked to San Bernardino terror suspect Syed Rizwan Farook, saying law enforcement demands for a "Government OS" set a dangerous precedent for the public at large. The filing was entered into record earlier today by Apple lawyers Theodore Olson and Theodore Boutrous is comprehensive but expectedly narrow in scope. At its core, Apple's case targets what it portrays as an overly zealous reading of the All Writs Act of 1789 by a federal magistrate judge, bolstered by First Amendment rights concerns and possible undue burden on the company's operations. The way Apple see this, it's not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe. The government says "Just this once" and/or "Just this phone." But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts. If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent. Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote. And if it succeeds here against Apple, there is no reason why the government could not deploy its new authority to compel other innocent and unrelated third-parties to do its bidding in the name of law enforcement. For example, under the same legal theories advocated by the government here, the government could argue that it should be permitted to force citizens to do all manner of things "necessary" to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant, or requiring a journalist to plant a false story in order to help lure out a fugitive, or forcing a software company to insert malicious code in its autoupdate process that makes it easier for the government to conduct court-ordered surveillance. Indeed, under the government's formulation, any party whose assistance is deemed "necessary" by the government falls within the ambit of the All Writs Act and can be compelled to do anything the government needs to effectuate a lawful court order. While these sweeping powers might be nice to have from the government's perspective, they simply are not authorized by law and would violate the Constitution. Speaking of which, there is also the issue of Apple's First Amendment right to free speech, or more specifically protections against compelled speech. "The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech," Boutrous said in an interview this week. "It is not appropriate for the government to obtain through the courts what they couldn't get through the legislative process." If Apple's motion is denied, the company is expected to appeal its case to the 9th Circuit Court. I would love to be on the bench when the Supreme Court hears this one.