As expected, Apple has filed its official motion to the courts, asking a judge to throw out the order requiring it to help the FBI hack into the San Bernardino shooter’s iPhone, Re/code reports. In line with Apple CEO Tim Cook’s open letter from last week and his comments to ABC News, Apple is arguing that the case would set a “dangerous precedent” by forcing Apple to create a back door to defeat its own security and undermining the security and privacy of “hundreds of millions of users.” Apple is maintaining that the government has misapplied the 200-year-old All Writs Act in requiring Apple to specifically develop new software to defeat the iPhone’s security model.
The 36-page filing notes that “Apple strongly supports, and will continue to support, the efforts of law enforcement in pursuing justice against terrorists and other criminals — just as it has in this case and others… but the unprecedented order requested by the government finds no support in law and would violate the Constitution.” The Government’s position is that its request is narrow and specific in being limited to a specific iPhone, but Apple is countering with the argument that this is simply not true, and that state and local officials throughout the U.S. have already stated publicly that they would use the new software developed by Apple to open “hundreds of other seized devices.” Apple also makes the argument that “once the floodgates open, they cannot be closed” and that Apple’s efforts to create private and secure devices would be “unwound without so much as a congressional vote.”
As Tim Cook explained in his interview with ABC News on Wednesday, Apple is also making the key argument that the All Writs Act could be similarly misused in the future to force companies to write code bypassing other security features and opening up devices to new means of surveillance, such as demanding that Apple write code to turn on microphones and cameras or override location services settings remotely on iPhones when requested by law enforcement or intelligence gathering agencies.
Apple’s argument is that the All Writs Act, dating back to 1789, wasn’t intended to provide the courts with “free-wheeling authority” to exercise powers not otherwise granted by Congress, and that conscripting Apple to help the government hack iPhones is outside of the authority of the courts. Apple maintains that this is the first time in U.S. history that a court has authorized the sort of action the government has requested.
In additional legal wrangling, Apple is also introducing a secondary argument based on the First Amendment, claiming that the code the company writes qualifies as constitutionally protected speech, reflecting Apple’s strong views on consumer security and privacy. By making the order in question, the government is effectively “compelling” Apple’s speech by forcing it to create new code that expresses the “government’s viewpoint on privacy and security instead of its own,” in essence violating the company’s First Amendment rights. Several legal analysts have suggested that Apple might be be more successful in making this particular argument.
