On Thursday, Apple filed its motion to vacate last week's controversial judicial order requiring it to undermine device security for its iOS operating system. The company's filing explains in compelling and forceful terms not only how the government demands to which it responds would undermine national security and place millions of people at risk, but also why the FBI has chosen an inappropriate process through which to seek a groundbreaking new power that Congress has sensibly never granted.
This case—despite government assurances to the contrary—would set a precedent and open a floodgate to similar orders.
Apple also notes throughout its brief that it has consistently supported and even provided resources to assist the FBI's investigation. According to the brief, the company would have provided alternative ways to reach the data on the phone at issue had the FBI not botched the investigation first by instructing local officials to reset the phone’s iCloud password.
Several themes recur throughout Apple's motion.
The first is that this case—despite government assurances to the contrary—would set a precedent and open a floodgate to similar orders. Apple notes that state and local officials in multiple cities have already contradicted FBI assurances by publicly declaring their interest in leveraging the potential precedent this investigation would establish to crack hundreds of phones used in alleged crimes unrelated to terrorism.
Another recurring principle is that encryption keeps us safe, whereas forcing device manufacturers to introduce vulnerabilities undermines security for everyone. While we have often disagreed with him in the past, former NSA and CIA Director Michael Hayden was right when he said earlier this week that:
[M]y judgment in this particular case is that universal backdoors—although it may facilitate American law enforcement for very good purposes—on balance, on balance, actually are an overall negative for American security, not just for American privacy.
Apple is far from alone in recognizing the value of encryption in protecting security, privacy, and by extension, freedom of expression for people whose speech might otherwise be chilled. Last year, the UN’s Special Rapporteur for freedom of expression released a report recommending that states embrace strong encryption and refrain from seeking to mandate backdoors, explaining that:
[D]iscussions of encryption and anonymity have all too often focused only on their potential use for criminal purposes in times of terrorism. But emergency situations do not relieve States of the obligation to ensure respect for international human rights law….
States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression…. States should avoid all measures that weaken the security that individuals may enjoy online, such as backdoors, weak encryption standards and key escrows.
Apple also argues that neither the All Writs Act nor other laws, including the Communications Assistance for Law Enforcement Act ("CALEA"), authorize the government to require companies like Apple to engineer new decryption tools. In fact, Congress intentionally stopped short of conveying such authority when legislating CALEA, and the government has declined to seek reforms to expand it since then.
Finally, the FBI's role in this controversy is worth noting. It downplayed the significant implications of its demands and has made disingenuous statements about the one-off nature of this case. Director Comey has said repeatedly that he welcomes a public debate about encryption, but meanwhile the FBI effectively sought to circumvent the legislative process through an ex parte judicial order that would authorize dangerous and unprecedented powers.
We’re excited to see the American people increasingly supporting privacy and security in the face of the government’s dangerous demands, and we’re glad so many everyday users recognize their interests in this debate.
Many have taken action to support privacy and security and expressed gratitude for Apple’s choice to defend those principles in its resistance to the FBI’s short-sighted power grab.
Continuing media attention to this controversy will focus observers, including legislators, on these issues. During this window of widespread interest, engagement by their constituents can play a crucial role in helping them better understand the technology in question and the values at stake.