The Gloves Are Really Off In The Apple Versus FBI Fight

Well, this Apple versus FBI fight over whether Apple has to forcibly unlock an iPhone certainly is not getting any less rancorous, is it?

Late last Thursday, the DOJ filed a memo in response to Apple’s motion to vacate the court’s order demanding that they develop the technology to create a back door so that the FBI can view the contents of the San Bernardino shooter’s iPhone.

The DOJ is clearly irritated that Apple has managed to capture the moral high ground in the debate, framing this as a startling violation of user privacy, so they kick things off with trying to explain how Apple is the bad guy here.

Apple’s rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights.

Corrosive, apparently, because it is the police and other assorted wings of the state that are safeguarding our liberty, not Apple.

The filing then tries to refocus the debate back to a position they have taken previously: they do not want to break into all iPhones-just the one-because they just (“just”!) want an alternative iOS that allows them access to the shooter’s phone only.

Anyone playing along at home knows that this is an oddly disingenuous stance to take, as if somehow the technology can be magically memory hole-d after Apple develops it. Once Apple can break into its own encryption scheme, or create an alternative iOS, or whatever method they are forced to use, the FBI and other law enforcement officials will demand they do so in future cases. Period. Indeed, New York’s Attorney General is already mad at Apple for failing to unlock 175 iPhones in cases there.

There is also some vague yet nasty hand-waving over the fact that Apple exercises tight control over both the hardware and software sides of iPhone tech, noting that such control is “monopoly-like” and grumping that Apple has “suzerainty over its users’ phones—and control over the precise features of the phones necessary for unlocking them[.]” When is the last time you got to use a word as great as “suzerainty” in a legal filing? This is all done in service of the argument that Apple isn’t some helpless third party drawn into a fight here. Rather, per the FBI, they and their encryption technology are the very reason we are having the fight.

Next, the memo argues that Apple is enormous and enormously rich, pointing out that Apple’s “revenues exceed the nominal GDPs of two thirds of the world’s nations.” Whoa. Because of that, says the FBI, Apple can surely spare the effort to unlock one measly iPhone.

Apple is one of the richest and most tech-savvy companies in the world, and it is more than able to comply with the AWA order. Indeed, it concedes it can do so with relatively little effort. Even this modest burden is largely a result of Apple’s own decision to design and market a nearly warrant-proof phone.

Finally, the memo is very unhappy about Apple’s (entirely valid) contention that if Apple makes technology to defeat its own encryption scheme, that necessarily has privacy implications everywhere, particularly for users who live in totalitarian or otherwise repressive regimes:

Lawful process in America cannot be confined by potential lawless oppression elsewhere merely because a corporation chooses to manufacture and market its products globally, without regard to its host countries’ legal regimes.

So, should something happen where privacy and safety are compromised in a terrible way elsewhere, it is basically at fault for selling phones outside of the United States. Got it.

In response to the filing, Apple held a press conference Thursday and called the memo a “cheap shot” and then…they went even further.

Let’s at least treat one another with respect and get this case before the American people in a responsible way. We are going to court to exercise our legal rights. Everyone should beware, because it seems like disagreeing with the Department of Justice means you must be evil and anti-American. Nothing could be further from the truth.

So both sides have resorted to saying that the other side undermines key American values. This likely is not going to get any nicer as time goes on.

Featured image: “man wearing a suit with ready to fight with his fists” from Shutterstock.`

The Gloves Are Really Off In The Apple Versus FBI Fight was originally published on Lawyerist.com.