Apple’s best arguments against the US over iPhone access

How will Apple Inc. fight the FBI?

Apple has just days left to marshal its legal arguments in the biggest battle in a generation pitting public safety against personal privacy: the U.S. government versus one of the world’s most powerful technology companies.

As the clock ticks down to its Friday filing deadline, Apple is preparing to argue that it would be an undue burden to help the government unlock an iPhone used by one of the San Bernardino shooters, according to a person familiar with the matter. It is framing arguments on First Amendment grounds, too, and could invoke the Constitution’s separation of powers to call for Congress, rather than the courts, to act.

To defeat the government’s carefully crafted request that the U.S. only wants access to one dead terrorist’s encrypted smartphone, the company has amassed legal firepower including data-privacy lawyer Marc Zwillinger and noted litigator Theodore Olson of Gibson Dunn & Crutcher. Here are Apple’s likely arguments.

Undue burden

Apple’s strongest argument, according to legal experts, is that the All Writs Act imposes an undue burden on the company by requiring it to write new software so the FBI can gain access to the locked iPhone – what Chief Executive Officer Tim Cook called “the software equivalent of cancer” in an interview Wednesday. The act has become a catch-all for judges expediting court orders, but a 1977 Supreme Court ruling set a precedent that compliance must not be too onerous.

The ruling required the New York Telephone Company, a predecessor of Verizon New York Inc., to help prosecutors by installing a pen register – a device that records telephone data – during a gambling probe. The court said use of the pen register was “in no way offensive,” because the telephone company already used similar devices for its own purposes, such as billing.

By contrast, Apple says compliance with the FBI’s demand would require an unknown number of worker hours and impose an even bigger burden in the form of added security risks for all iPhone users. In the wake of Cook’s Feb. 16  letter casting the Justice Department’s demand as a “chilling” attack on civil liberties, Apple may argue that any encryption key it writes would open a Pandora’s box of privacy concerns.

If Apple loses, it’s likely to get thousands of similar requests from law enforcement officials every year and will need a compliance department – which will then become “the technological back door where foreign governments and malicious hackers focus their efforts,” American Civil Liberties Union staff attorney Alex Abdo said in a press briefing Wednesday. The ACLU plans to file court papers supporting Apple in the case.

Apple has also said an undue burden could fall on its brand and reputation, which could suffer if it is forced to act as an “agent of law enforcement.”

“Hacking its own phone when it has promised not to do so is very different” from the New York Telephone case, said Timothy Edgar, a senior fellow at the Watson Institute for International Studies and Public Affairs at Brown University.

Government officials have said that Apple, with its vast resources, should be able to comply without much effort.

“When you are the two companies whose operating systems handle more than 90 percent of mobile communications worldwide, you should be accountable for more than just sales,” New York City Police Commissioner William Bratton and John J. Miller, deputy commissioner for counterterrorism, wrote in an opinion piece in the New York Times, referring to Apple and Google.

One obstacle Apple may face is that its position on the All Writs Act appears to have shifted. The company had complied with at least 70 similar warrants in recent years without complaint, prosecutors said in a similar case playing out before a federal magistrate in New York, over a search warrant for a phone seized from a drug dealer.

Apple says those orders applied to earlier versions of its operating system. The newer versions, with enhanced encryption features, don’t allow for the same kind of access. Disclosing too much in court about how the systems work could also jeopardize Apple’s trade secrets, the company has said. Until the New York case, “no state court or federal court had invited Apple to submit its views,” Zwillinger said during a hearing in Brooklyn last fall.

Since early October, Apple has objected to at least seven other demands similar to the San Bernardino order, for devices including those using operating systems iOS 6, 7, 8, and 9, Zwillinger said in a letter unsealed this week in Brooklyn federal court.

Separation of powers

If its comments in the Brooklyn case are any guide, Apple may also argue that the All Writs Act shouldn’t apply at all. Limited case law on the boundaries of the act as applied to modern technology hampers it here.

“This is pushing the law to a new frontier,” Zwillinger told U.S. Magistrate Judge James Orenstein during the fall hearing. If the U.S. wants to require companies “to provide forensic services to the government, I think the place to go is Congress,” he said.

Indeed, the act wasn’t meant to lead to new lawmaking, said Jeffrey Vagle, executive director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School. One could argue that compelling a company to produce something – code, for instance – effectively does just that.

For privacy advocates, “the real issue here is this is the executive branch bypassing the separation of powers,” said Laura Donohue, director of the Center on National Security and the Law at Georgetown University.

But the dearth of applicable case law is a problem for this argument, Vagle said. The New York Telephone ruling set a strong precedent that communications firms had a duty to “provide technical assistance.”

Code as free speech

Perhaps the diciest of arguments for Apple is that computer code is speech, protected by the First Amendment, as some courts have held, and that the government can’t make it write code. The U.S. faces steep legal barriers to compelling speech. Warning labels on cigarettes and nutrition information on food have cleared the bar.

Apple began to consider a First Amendment argument while drafting a response to the ruling on the warrant last week, according to the person familiar with the matter.

Experts say it’s murky. Because there is no broad precedent that code is speech, the argument “may not work everywhere,” Vagle said.

Code as slavery?

Still other arguments, which Vagle called speculative, have been floated by observers and enthusiasts in blogs and on Twitter. There is a possible Second Amendment claim that Apple’s security measures serve as a check on government power, in the same way gun ownership might, and a 14th Amendment claim likening the government’s demand to slavery, if it requires unpaid programming labor. Then there is a shaky Fourth Amendment argument against unreasonable search and seizure.

More broadly, though, the constitutional argument underpins the whole debate and could help persuade judges, Donohue said. If Apple ends up creating a “back door” into its secure software, it would be as though “the government were demanding to have a set of keys to everybody’s house.”

While fighting the Justice Department, Apple will also have to counter mounting pressure from the public and from victims of the San Bernardino attack themselves. People now know “they can conduct criminal activity on a phone and they’re protected,” Mike Ramos, San Bernardino County District Attorney and president-elect of the National District Attorneys Association, said in a phone interview.

Ramos’s counterpart in Manhattan, Cyrus Vance Jr., has said thousands of cases in his district every year involve phones used by criminals committing violent crimes and that encryption is currently hampering his efforts in 175 cases, up from 111 late last year.

“Apple and Google are their own sheriffs, and there are no rules,” Vance said last week.