Following Tim Cook’s letter to Apple’s customers and exchanges between Apple and the government in the court of public opinion, Apple filed its legal brief on February 25 in the Central District of California Federal District Court. Apple’s brief delineates its legal arguments opposing the government’s motion to compel Apple’s technical assistance in unlocking the iPhone used by one of the San Bernardino shooters. Apple’s 36-page brief is summarized succinctly in its first sentence: “This is not a case about one isolated iPhone.” Apple justifies its opposition to the court’s recent order requiring it to provide “technical assistance” to the government by asserting that “[t]he order demanded by the government compels Apple to create a new operating system—effectively a ‘back door’ to the iPhone—that Apple believes is too dangerous to build.”
An interesting, but not much publically discussed aspect of this case, concerns the application of a legal statute dating back to our founding fathers—the All Writs Act of 1789. This law authorizes courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Apple contends that this broadly worded statute should not be applied to impose a duty on third parties to facilitate the government’s decryption of devices. Apple asserts that it should be a political question, not a legal one, whether companies should be compelled to create a back door to their own operating systems to assist law enforcement. The relevant considerations, with widespread global repercussions, go, in Apple’s view, well beyond the All Writs Act and the limited authority of courts to issue orders under the statute. Instead, the policy issues should be determined initially by the legislative branch after public debate.
Apple also raises constitutional arguments in opposition to the court’s recent order requiring it to provide “technical assistance” to unlock the recovered iPhone. Apple argues that the First Amendment prohibits the government from compelling Apple to create code. Apple asserts that computer code is treated as speech and that, where the government seeks to compel speech, such action triggers First Amendment protections. Apple also cites to the Fifth Amendment’s due process protections. Apple argues that the government's requested order, “by conscripting a private party with an extraordinary attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from ‘arbitrary deprivation of [its] liberty by government.”'
The case before the California Federal District Court will proceed with further briefing before a scheduled March 22 hearing. We will continue to monitor and report on this matter of significant national attention and concern.