Apple will face another legal challenge this Tuesday when a top attorney from the tech company will meet with the U.S. House of Representatives Judiciary Committee for a hearing about encryption which comes after the iPhone maker decided to resist a federal court order on Thursday from a federal magistrate compelling the company to create a new security code that allows federal law enforcement officials to access and retrieve personal data on Apple’s iPhones.
The federal court order filed on February 16th comes in response to an FBI effort to break into the iPhone 5 c belonging to Syed Farook, one of the shooters who murdered 14 innocent Americans in San Bernardino, California who was inspired by ISIS.
On Thursday Apple filed a Motion to vacate the federal court order.
FBI Director James Comey will be attending a separate panel during Tuesday’s court hearing and then later speak before the House Intelligence Committee on Thursday.
Last week Apple CEO Tim Cook wrote a letter that outlines the reasons Apple remains opposed to the federal court order.
Cook also met with ABC host Dan Muir for a televised interview and defended the company’s position which has received support from some big names in the tech industry but also faced criticism from law enforcement officials and Republicans, including Donald Trump who went as far as asking Americans to boycott Apple.
The U.S. government is effectively asking Apple to create a new backdoor to the iPhone that forces the company to remove imbedded security features while adding a new capability to their iOS operating system that attacks iPhone encryption and permits a passcode to be input electronically.
Cook argues that by following court orders the federal government is asking Apple to hack their own users and undermine decades of security advancements that protect Apple customers from sophisticated hackers and cybercriminals.
“For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data” Cook wrote.
Apple believes that the federal government is overstepping its role as Congress has codified the Communications Assistance For Law Enforcement Act of 1992 which deals with the guidelines of private entities to act based on a wiretapping law passed in 1994 that granted an enhanced ability to law enforcement officials to wiretap any telephone traffic and was extended to cover broadband Internet and VoIP traffic.
According to Apple’s motion, the company maintains that the government wants Apple software security engineers to create a “crippled” and “insecure” product that could compromise Apple’s security and potentially be used by other foreign governments.
“Once the product is created, it provides an avenue for criminals and foreign agents to access millions of iPhones. And once developed for our government, it is only a matter of time before foreign governments demand the same tool” Apple wrote in their motion.
Technically speaking, the creation of a backdoor would give a key to Federal law enforcement officials to disable Apple’s “auto erase” function that is designed to secure against efforts to gain unauthorized access to the device’s encrypted content and deletes encrypted data after ten unsuccessful attempts to discover the iPhone’s passcode.
In the motion, Apple rejects the government’s claim that it just wants to unlock one iPhone of one terrorist and claims that the U.S. government has filed multiple other applications for similar orders.
Apple states that other state and local officials have publically declared their intent to use the proposed operating system to open hundred of other seized devices- in cases unrelated to terrorism.
Earlier this month, the Justice Department requested $38 million in its 2017 budget to assist the FBI in developing anti-encryption technology which is part of $900 million funding request to strengthen cyber security.
Fearing that the legal action will result in a new case precedent in court, Apple is concerned that their technological iOS security advancements that protects users, banks, and restaurants will become diminished while a Pandora’s Box of issues could emerge.
“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” Apple states in their motion.
Apple insists that the federal court order- which compromises the integrity and security of its software security- is unconstitutional and finds no support in existing law.
“Such an order would inflict significant harm- to civil liberties, society, and national security- and would preempt decisions that should be left to the will of the people through laws passed by Congress and signed by the President” Apple’s motion states.
The federal court order that was signed by a federal magistrate is loosely based on the All Writs Act.
The current form of the All Writs Act was passed in 1911 and amended several times.
In a 1977 Writs case involving the United States vs New York Telephone Co, the Supreme Court decided a three factor litmus test for the admissible application of the All Writs Act: 1) the party ordered to perform an action cannot be too far removed from the case, 2) the government’s request cannot impose an undue burden on that party, 3) and the party’s assistance is necessary.
Apple argues that their case is nothing like the New York Telephone Company case where there was probable cause to believe that the phone company’s own facilities were “being employed to facilitate a criminal enterprise on a continuing basis” and Apple is not a “highly regulated public utility with a duty to serve the public.”
Apple stipulates that the All Writs Act does not allow the government to compel a manufacturer’s assistance merely because it has placed a good into the stream of commerce.
Apple argues in their motion filing to vacate the following arguments:
The All Writs Act, first enacted in 1789 and on which the government bases its entire case, “does not give the district court a roving commission” to conscript and commandeer Apple in this manner. Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). In fact, no court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it.
The All Writs Act (or the “Act”) does not provide the judiciary with the boundless and unbridled power the government asks this Court to exercise. The Act is intended to enable the federal courts to fill in gaps in the law so they can exercise the authority they already possess by virtue of the express powers granted to them by the Constitution and Congress; it does not grant the courts free-wheeling authority to change the substantive law, resolve policy disputes, or exercise new powers that Congress has not afforded them. Accordingly, the Ninth Circuit has squarely rejected the notion that “the district court has such wide-ranging inherent powers that it can impose a duty on a private party when Congress has failed to impose one. To so rule would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction.”
Congress has never authorized judges to compel innocent third parties to provide decryption services to the FBI. Indeed, Congress has expressly withheld that authority in other contexts, and this issue is currently the subject of a raging national policy debate among members of Congress, the President, the FBI Director, and state and local prosecutors. Moreover, federal courts themselves have never recognized an inherent authority to order non-parties to become de facto government agents in ongoing criminal investigations. Because the Order is not grounded in any duly enacted rule or statute, and goes well beyond the very limited powers afforded by Article III of the Constitution and the All Writs Act, it must be vacated.
Apple maintains in its motion filing that the company is no more connected to this phone than General Motors is to a company car used by a fraudster on his daily commute.
Apple also points out that its software is licensed, not sold.
“A license agreement no more connects Apple to the underlying events than a sale. The license does not permit Apple to invade or control the private data of its customers.”