Publicly, Apple and the FBI continue to spar over a government order requiring Apple to write software that would make it possible for the FBI to "brute force" its way into the locked iPhone belonging to one of the terrorists who killed 14 people in San Bernardino, California in December.
Privately, Apple's lawyers are surely working overtime preparing a response to the order, outlining the company's strongest legal defense, which is due Friday.
The case has already captivated legal scholars: Orin Kerr, a professor at George Washington University Law School, wrote in the Washington Post that the "case is like a crazy-hard law school exam hypothetical in which a professor gives students an unanswerable problem just to see how they do."
Motherboard has no inside knowledge of Apple's legal machinations, but a survey of case law, the company's public statements, previous legal filings by Apple, and interviews with tech-minded legal scholars give us an idea of the arguments the company might raise.
According to those scholars, Apple has a persuasive defense pointing to a Supreme Court interpretation of The All Writs Act, the 1789 law the FBI is using to compel Apple's cooperation. On Constitutional grounds, Apple has a strong First Amendment argument, a strong Fifth Amendment argument, and a plausible Fourth Amendment argument.Radio Motherboard is also available on iTunes and all podcasting apps.
All of these arguments will likely center on the fact that that Apple strongly believes that complying with this order will fundamentally undermine a platform that was designed to keep its customers' data safe.
"Law enforcement agents around the country have already said they have hundreds of iPhones they want Apple to unlock if the FBI wins this case. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks," Apple wrote in a letter to its customers. "We strongly believe the only way to guarantee that such a powerful tool isn't abused and doesn't fall into the wrong hands is to never create it."
A strong public statement isn't strictly a legal argument, however. Here's how Apple might argue its case.
What the FBI is asking Apple to do (Skip this if you're already familiar with the case)
The FBI is in possession of the iPhone 5C belonging to Syed Rizwan Farook, one of the terrorists who shot and killed 14 people last year. The government says it wants information stored on that phone, but the iPhone's lock screen is preventing the agency from accessing it. The FBI is asking Apple to disable two aspects of iOS: One that erases the phone's encryption key if the unlock passcode is entered incorrectly 10 consecutive times, and another that forces a time delay with each failed attempt.
Farook worked for the San Bernardino Department of Public Health, which is important: The iPhone in question was owned by the department, and the FBI has the permission of the local government to unlock the phone.
"This isn't quite as bad as asking PETA to euthanize a bunch of animals, but it's damn close."
Apple has said publicly that it is possible for the company to write this software, but says that doing so will essentially create a "backdoor" in the iPhone's operating system, meaning it's created a vulnerability that can be used—maybe by governments, maybe by hackers—to access data that is supposed to remain encrypted and protected.
Apple says law enforcement agencies all over the country and governments all around the world will ask it for similar software, fundamentally undermining features of the phone that help prevent hackers from totalitarian regimes from accessing private data from innocent people's phones.
The All Writs Act
In the past few weeks, much ink has been spilled over the All Writs Act, a law that says courts may "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The law has been called a "gap-filler" that allows courts to to compel third parties to assist with prior court orders.
There are limits to the power of this act, however, most of which were established in a 1977 Supreme Court case called United States v. New York Telephone, in which the justices ruled there is a limit to what courts can compel third parties in a case to do: "unreasonable burdens may not be imposed."
Many legal scholars agree that the definition of "unreasonable burden" is what's important here. But outside of US v. NY Telephone, there isn't a great definition of what makes a burden "unreasonable." In that case, the court ruled that the FBI could require NY Telephone, a "highly regulated public utility with a duty to serve the public" to provide the FBI with pen registers (a list of dialed phone numbers) to assist it in an investigation.
The FBI argues in its order that "this case requires Apple to provide modified software, modifying an operating system—writing software code—is not an unreasonable burden for a company that writes software code as part of its regular business."
"If Apple is being forced to compromise the security of its devices going forward, that can't be compensated with cash"
It may be the case that actually designing and writing this software would be of trivial difficulty for Apple (Apple has never said it can't write the software, but has said it would likely take weeks or months to write as opposed to hours or days). But there are many definitions of the word "burden" that have nothing to do with how many man hours it'll take Apple's engineers to code it.
For one, Apple will likely argue that this "burden" opens the door to many future "burdens."
"This is by far, by far, by far the case where a company is being to asked to do 'the most,' if you will," Nate Cardozo, a staff lawyer at the Electronic Frontier Foundation told me. "Burdens can usually be mitigated by payment. If it would cost $100,000, the government could cough up $100,000."
"But it's a question of if the burden goes beyond money and includes Apple being eventually forced to use its resources for this for other cases, to make statements about privacy to its customers that could be considered a lie," Cardozo added. "This isn't quite as bad as asking PETA to euthanize a bunch of animals, but it's damn close."
There is another argument Apple will likely make under the All Writs Act, and that argument is that the All Writs Act shouldn't apply to the company at all. It's an argument that Apple is trying in a kind-of-similar (but different) case in New York. In that case, magistrate judge James Orenstein initially denied an FBI request to compel Apple to unlock a phone belonging to a drug dealer that was running an older version of iOS.
In New York, Apple argued that the Communications Assistance for Law Enforcement Act, which requires crypto backdoors for telephone companies but not for "information providers," should supersede the All Writs Act in this instance.
"CALEA does not compel providers like Apple to assist law enforcement with respect to data stored on a device," Apple argued in its New York legal brief. The drug dealer eventually pled guilty, but both Apple and the Federal Government have asked the court to make a final ruling on this part of the case. In a letter to Judge Orenstein earlier this month, Apple wrote that it still wants an answer to the question of "whether the All Writs Act can properly compel a third party like Apple to assist law enforcement."
Apple suggested it would have to make similar arguments that CALEA should supersede the All Writs Act in future cases, which is what Lisa Hayes, vice president of programs and strategy at the Center for Democracy and Technology, expects the company to do.
"My guess is that Apple will say CALEA supersedes the All Writs Act, and the court will say 'it was a nice try,' by the government, but it's not going to work in this case," she told me. "I'm fairly confident that's where this is going."
The First Amendment Defense
The Ninth Circuit, which governs California district courts, has ruled that code is "speech" protected by the First Amendment.
If that's true, the FBI may not be able to compel Apple to write code that is fundamentally antithetical to its stated goal of providing strong privacy and security protections for its consumers. I went into detail about what this argument might look like last week, and a Bloomberg report suggests Apple will indeed use this defense.
"The First Amendment arguments are strong and Apple will definitely raise them," Cardozo said.
The Fourth Amendment Defense
In his excellent legal explainers, Kerr noted some very important facts that would appear to toss out any Fourth Amendment arguments in this case. First, the terrorist in this case is dead and thus has no expectation of privacy. Second, Apple likely cannot defend the privacy rights of a third party. Third, the FBI has the permission of the phone's owner (Farook worked for a local public health department) to search the phone.
Hayes says there may still be a Fourth Amendment argument for Apple to make, however, though she says it's likely a weaker argument than many of the others.
"The Fourth Amendment argument is that when the government is executing a search warrant, it needs to execute it in a 'reasonable manner,'" she said. "You need third parties in a lot of these cases—a landlord will unlock the door to a tenant's house. In this case, there's an argument saying that forcing Apple to spend weeks of time making its phone less secure is not a 'reasonable manner.'"
Whether that's an argument any tech company has tried to make before is anyone's guess: Many national security cases have played out under seal under provisions in the Patriot Act.
"This is an old-school fishing expedition for a good test case, which is exactly what the FBI got."
"A lot of these court actions have taken place under the veil of secrecy," Hayes said. "I think this is a really good test case for that reason—it's a publicly filed case."
The Fifth Amendment Defense
The "Takings Clause" of the Fifth Amendment requires the government to give "just compensation" if it takes private property for use by the public. Apple can and may argue that there is no monetary value that would make it worth it to create and then give the Federal Government a piece of software that makes its product worse.
"This argument really runs parallel to the All Writs Act argument—what the government is proposing to do is an unreasonable burden," Cardozo said. "If Apple is being forced to compromise the security of its devices going forward, that can't be compensated with cash."
What about the iCloud Password?
Apple has pounced on the FBI for an apparent screwup in which it worked with the local government to accidentally change Farook's iCloud password, therefore making it impossible for Apple to comply with a search warrant that would have allowed it to give the government a backup of Farook's phone without actually unlocking it. The FBI says this was not a mistake, but the move has nonetheless made Apple's job harder and has closed a door that Apple usually leaves open for law enforcement. Can Apple legally argue government incompetence is to blame for this whole snafu?
"There's a saying—if you have the law on your side, argue the law. If you don't, argue the facts. The facts here are compelling," Hayes said. "Apple has worked hard to be a good partner to the FBI in the past with these iCloud backups. In this case, the FBI did something that made the phone more difficult for Apple to access without installing a vulnerability. I don't know if there'll be a legal argument there, but it'll definitely be included under the list of facts, and it's a persuasive one."
Will Apple Win?
By all accounts, the government has selected a really good case to push Apple on here. It involves a dead terrorist that killed innocent people in a well-known national tragedy.
"This is entirely about setting a precedent," Hayes said. "This is an old-school fishing expedition for a good test case, which is exactly what the FBI got."
But Cardozo and Hayes both believe the government is fighting an uphill battle here—Apple's All Writs Act defense is strong, as is its First Amendment case. The FBI's ask is "unprecedented," Cardozo said, and Hayes said she's "confident Apple is on the correct side and that it will ultimately win this case," either at the magistrate level or eventually upon appeal.
Others aren't so sure and believe that the court's definition of "burden" will ultimately be interpreted narrowly to mainly concern the amount of time it'll take Apple to code the tool the FBI wants.
"Apple's concerns are for the privacy and security of the users of its products more generally," Michael Dorf, a professor at Cornell Law School wrote in a blog post. "Does that count as a burden? I very much doubt that the courts will say so, but maybe Apple's argument here is not quite as bad as it at first appears."
"I think everybody expects this'll go on for a while"
Dorf then notes that Apple's argument is compelling in principle, but that there's no established legal principle or precedent that gives a "manufacturer-customer privilege" of confidentiality, similar to doctor-patient confidentiality: "To be clear, I think Apple will likely lose this fight—at least given the case law we have."
And that's what I've heard over and over again: That there's just not enough case law to have any idea where the court will ultimately lean, and it's likely going to take quite a while to get a precedent here.
This is likely the most important court case we've ever seen regarding the limits of companies to offer unbreakable encryption to their consumers, and lots of people are going to weigh in. Every civil liberty group I've spoken to is planning on filing an amicus brief supporting different aspects of Apple's potential case. Meanwhile, the FBI has gotten victims of the attack and their families to file a brief with an emotional appeal, and an early poll suggests Apple is narrowly losing the battle in the court of public opinion.
The next hearing on this case is scheduled for March 22, and both Apple and the federal government seem to have dug in their heels on this issue—there's a likely chance any decision will be appealed, at which point some of the broader Constitutional questions will likely come into sharper focus.
"This is the proxy case strategically selected by the FBI that I think will ultimately explore some of the things that keep coming up in the encryption debate," Hayes said. "I think everybody expects this'll go on for a while."