Apple’s lawyers tried to lower the temperature in the company’s fight with the US government on Tuesday, telling a federal judge that America’s Justice Department is well-meaning but wrong in its privacy standoff with the iPhone maker.
The 26-page legal filing is either side’s last argument before they face each other in a California court on 22 March over whether the government can order Apple to weaken the security settings on one of its ubiquitous phones linked to the San Bernardino shooting last December.
The past month has seen Apple, the FBI and allies on both sides sling insults and innuendos at each other in what appeared to be a fast-escalating war of words.
On Tuesday, Apple tried a different approach.
“The government’s motivations are understandable, but its methods for achieving its objectives are contrary to the rule of law, the democratic process, and the rights of the American people,” Apple’s lawyers wrote. “This case arises in a difficult context after a terrible tragedy. But it is in just such highly-charged and emotional cases that the courts must zealously guard civil liberties and the rule of law and reject government overreaching.”
Whether such rhetoric will convince the federal magistrate judge, Sheri Pym, a former US prosector, and the American public, which is split on the privacy debate, remains to be seen. But Apple also is signaling that even if it loses the first round it is preparing for a lengthy appeals process that will involve high-minded discussions about privacy and law enforcement in the digital age.
Also on Tuesday, the Justice Department responded that Apple, the US stock market’s most valuable company, was trying to usurp power from government. “The Constitution and the laws of the United States do not vest that power in a single corporation,” it said in a written statement.
After a month of testing out various legal theories, Apple and the government appear to have settled on what will be the main question of the case. Does a vague law from 1789 – the so-called All Writs Act – give courts authority to make tech companies remake their products in times of duress?
The government insists the answer is “Yes”.
Apple emphatically disputed that in Tuesday’s submission, insisting the statute gives courts broad authority to make sure lawful orders are carried out. However, Apple argues it does not give courts authority to make law where Congress and the White House have decided not to do so.
Apple lawyers cited news articles, including one published in the Guardian, showing that officials within the Obama administration and on Capitol Hill are at odds over how much technology companies should be required to weaken security settings to help law enforcement. Apple argues the FBI is frustrated by Washington gridlock and is effectively seeking to make the law it wants through the courts.
“The Justice Department and FBI are seeking an order from this Court that would force Apple to create exactly the kind of operating system that Congress has thus far refused to require,” Apple’s lawyers wrote.
For a publicly traded company such as Apple, cases like these are just as much about consumer perception as legal merits. Mindful of that, Apple tried to dispel one of the more pointed arguments from the government: that it is marketing its products as “warrant-proof”.
To that end, a footnote in Apple’s filing said that of the 1,793 ads its placed since it introduced expanded iPhone encryption by default in the fall of 2014, not one has said or suggested the phones will thwart police.
Still, Apple does state on the privacy section of its public website that some of its products are off limits to authorities, apparently aware that could give its products an edge over competitors.
“Apple has no way to decrypt iMessage and FaceTime data when it’s in transit between devices,” Apple states on its website. “So unlike other companies’ messaging services, Apple doesn’t scan your communications, and we wouldn’t be able to comply with a wiretap order even if we wanted to.”
This article was written by Danny Yadron in San Francisco, for theguardian.com on Tuesday 15th March 2016 23.43 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010