Apple’s Response To DOJ: Your Filing Is Full Of Blatantly Misleading Claims And Outright Falsehoods
from the no-love-lost dept – TECH DIRT
The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is. As theorized by the government, the Act can authorize any and all relief except in two situations: (1) where Congress enacts a specific statute prohibiting the precise action (i.e., says a court may not “order a smartphone manufacturer to remove barriers to accessing stored data on a particular smartphone,” … or (2) where the government seeks to “arbitrarily dragoon” or “forcibly deputize” “random citizens” off the street…. Thus, according to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up. The Founders would be appalled.
The Founders would be appalled. That’s quite a statement.
Apple also slams the DOJ for insisting that this really is all about the one iPhone and that the court should ignore the wider precedent, citing FBI Director James Comey’s own statements:
It has become crystal clear that this case is not about a “modest” order and a “single iPhone,” Opp. 1, as the FBI Director himself admitted when testifying before Congress two weeks ago. Ex. EE at 35 [FBI Director James Comey, Encryption Hr’g] (“[T]he broader question we’re talking about here goes far beyond phones or far beyond any case. This collision between public safety and privacy—the courts cannot resolve that.”). Instead, this case hinges on a contentious policy issue about how society should weigh what law enforcement officials want against the widespread repercussions and serious risks their demands would create. “Democracies resolve such tensions through robust debate” among the people and their elected representatives, Dkt. 16-8 [Comey, Going Dark], not through an unprecedented All Writs Act proceeding.
Apple then, repeatedly, points out where the DOJ selectively quoted, misquoted or misleadingly quoted arguments in its favor. For example:
The government misquotes Bank of the United States v. Halstead,…, for the proposition that “‘[t]he operation of [the Act]’” should not be limited “‘to that which it would have had in the year 1789.’” … (misquoting Halstead, 23 U.S. (10 Wheat.) at 62) (alterations are the government’s). But what the Court actually said was that the “operation of an execution”—the ancient common law writ of “venditioni exponas”—is not limited to that “which it would have had in the year 1789.” … see also… (“That executions are among the writs hereby authorized to be issued, cannot admit of a doubt . . . .”). The narrow holding of Halstead was that the Act (and the Process Act of 1792) allowed courts “to alter the form of the process of execution.” … (courts are not limited to the form of the writ of execution “in use in the Supreme Courts of the several States in the year 1789”). The limited “power given to the Courts over their process is no more than authorizing them to regulate and direct the conduct of the Marshal, in the execution of the process.”
The authority to alter the process by which courts issue traditional common law writs is not authority to invent entirely new writs with no common law analog. But that is precisely what the government is asking this Court to do: The Order requiring Apple to create software so that the FBI can hack into the iPhone has no common law analog.
The filing then goes step by step in pointing out how the government is wrong about almost everything. The DOJ, for example, kept insisting that CALEA doesn’t apply at all to Apple, but Apple points out that the DOJ just seems to be totally misreading the law:
Contrary to the government’s assertion that its request merely “brush[es] up against similar issues” to CALEA…, CALEA, in fact, has three critical limitations—two of which the government ignores entirely—that preclude the relief the government seeks…. First, CALEA prohibits law enforcement agencies from requiring “electronic communication service” providers to adopt “any specific design of equipment, facilities, services, features, or system configurations . . . .” The term “electronic communication service” provider is broadly defined to encompass Apple. … (“any service which provides to users thereof the ability to send or receive wire or electronic communications”). Apple is an “electronic communication services” provider for purposes of the very services at issue here because Apple’s software allows users to “send or receive . . . communications” between iPhones through features such as iMessage and Mail….
The government acknowledges that FaceTime and iMessage are electronic communication services, but asserts that this fact is irrelevant because “the Court’s order does not bear at all upon the operation of those programs.” … Not so. The passcode Apple is being asked to circumvent is a feature of the same Apple iOS that runs FaceTime, iMessage, and Mail, because an integral part of providing those services is enabling the phone’s owner to password-protect the private information contained within those communications. More importantly, the very communications to which law enforcement seeks access are the iMessage communications stored on the phone…. And, only a few pages after asserting that “the Court’s order does not bear at all upon the operation of” FaceTime and iMessage for purposes of the CALEA analysis…, the government spends several pages seeking to justify the Court’s order based on those very same programs, arguing that they render Apple “intimately close” to the crime for purposes of the New York Telephone analysis.
Second, the government does not dispute, or even discuss, that CALEA excludes “information services” providers from the scope of its mandatory assistance provisions…. Apple is indisputably an information services provider given the features of iOS, including Facetime, iMessage, and Mail….
Finally, CALEA makes clear that even telecommunications carriers (a category of providers subject to more intrusive requirements under CALEA, but which Apple is not) cannot be required to “ensure the government’s ability” to decrypt or to create decryption programs the company does not already “possess.”… If companies subject to CALEA’s obligations cannot be required to bear this burden, Congress surely did not intend to allow parties specifically exempted by CALEA (such as Apple) to be subjected to it. The government fails to address this truism.
Next, Apple rebuts the DOJ saying that since CALEA doesn’t address this specific situation, that means Congress is just leaving it up to the courts to use the All Writs Act. As Apple points out, in some cases, Congress not doing something doesn’t mean it rejected certain positions, but in this case, the legislative history is quite clear that Congress did not intend for companies to be forced to help in this manner.
Here, Congress chose to require limited third-party assistance in certain statutes designed to aid law enforcement in gathering electronic evidence (although none as expansive as what the government seeks here), but it has declined to include similar provisions in other statutes, despite vigorous lobbying by law enforcement and notwithstanding its “prolonged and acute awareness of so important an issue” as the one presented here…. Accordingly, the lack of statutory authorization in CALEA or any of the complementary statutes in the “comprehensive federal scheme” of surveillance and telecommunications law speaks volumes…. To that end, Congress chose to “greatly narrow” the “scope of [CALEA],” which ran contrary to the FBI’s interests but was “important from a privacy standpoint.” … Indeed, CALEA’s provisions were drafted to “limit the scope of [industry’s] assistance requirements in several important ways.”….
That the Executive Branch recently abandoned plans to seek legislation expanding CALEA’s reach… provides renewed confirmation that Congress has not acceded to the FBI’s wishes, and belies the government’s view that it has possessed such authority under the All Writs Act since 1789.
In fact, in a footnote, Apple goes even further in not just blasting the DOJ’s suggestion that Congress didn’t really consider a legislative proposal to update CALEA to suck in requirements for internet communications companies, but also highlighting the infamous quote from top intelligence community lawyer Robert Litt about how they’d just wait for the next terrorist attack and get the law passed in their favor at that point.
The government’s attempts to minimize CALEA II, saying its plans consisted of “mere vague discussions” that never developed into a formal legislative submission …, but federal officials familiar with that failed lobbying effort confirmed that the FBI had in fact developed a “draft proposal” containing a web of detailed provisions, including specific fines and compliance timelines, and had floated that proposal with the White House….. As The Washington Post reported, advocates of the proposal within the government dropped the effort, because they determined they could not get what they wanted from Congress at that time: “Although ‘the legislative environment is very hostile today,’ the intelligence community’s top lawyer, Robert S. Litt, said to colleagues in an August  e-mail, which was obtained by The Post, ‘it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.’ There is value, he said, in ‘keeping our options open for such a situation.’”
Next Apple goes through the arguments for saying that, even if the All Writs Act does apply, and even if the court accepts the DOJ’s made up three factor test, Apple should still prevail. It notes, again, that it is “far removed” from the issue and reminds the court that the order sought here is very different from past cases where Apple has cooperated:
The government argues that “courts have already issued AWA orders” requiring manufacturers to “unlock” phones … but those cases involved orders requiring “unlocking” assistance to provide access through existing means, not the extraordinary remedy sought here, i.e., an order that requires creating new software to undermine the phones’ (or in the Blake case, the iPad’s) security safeguards.
It also mocks that weird argument from the DOJ that said because Apple “licenses” rather than “sells” its software, that means Apple is more closely tied to the case:
The government discusses Apple’s software licensing and data policies at length, equating Apple to a feudal lord demanding fealty from its customers (“suzerainty”). … But the government does not cite any authority, and none exists, suggesting that the design features and software that exist on every iPhone somehow link Apple to the subject phone and the crime. Likewise, the government has cited no case holding that a license to use a product constituted a sufficient connection under New York Telephone. Indeed, under the government’s theory, any ongoing postpurchase connection between a manufacturer or service provider and a consumer suffices to connect the two in perpetuity—even where, as here, the data on the iPhone is inaccessible to Apple.
From there, Apple dives in on the question of how much of a “burden” this would be. This is the issue that Judge Pym has indicated she’s most interested in, and Apple goes deep here — again and again focusing on how the DOJ was blatantly misleading in its motion:
Forcing Apple to create new software that degrades its security features is unprecedented and unlike any burden ever imposed under the All Writs Act. The government’s assertion that the phone companies in Mountain Bell and In re Application of the U.S. for an Order Authorizing the Installation of a Pen Register or Touch-Tone Decoder and a Terminating Trap …, were conscripted to “write” code, akin to the request here… mischaracterizes the actual assistance required in those cases. The government seizes on the word “programmed” in those cases and superficially equates it to the process of creating new software….. But the “programming” in those cases—back in 1979 and 1980—consisted of a “technician” using a “teletypewriter” in Mountain Bell …, and “t[ook] less than one minute” in Penn Bell… Indeed, in Mountain Bell, the government itself stated that the only burden imposed “was a large number of print-outs on the teletype machine”—not creating new code….. More importantly, the phone companies already had and themselves used the tracing capabilities the government wanted to access…. And although relying heavily on Mountain Bell, the government neglects to point out the court’s explicit warning that “[t]his holding is a narrow one, and our decision today should not be read to authorize the wholesale imposition upon private, third parties of duties pursuant to search warrants.” …This case stands light years from Mountain Bell. The government seeks to commandeer Apple to design, create, test, and validate a new operating system that does not exist, and that Apple believes—with overwhelming support from the technology community and security experts—is too dangerous to create.
Seeking to belittle this widely accepted policy position, the government grossly mischaracterizes Apple’s objection to the requested Order as a concern that “compliance will tarnish its brand”…, a mischaracterization that both the FBI Director and the courts have flatly rejected. [See Comey] (“I don’t question [Apple’s] motive”);… (disagreeing “with the government’s contention that Apple’s objection [to being compelled to decrypt an iPhone] is not ‘conscientious’ but merely a matter of ‘its concern with public relations’”). As Apple explained in its Motion, Apple prioritizes the security and privacy of its users, and that priority is reflected in Apple’s increasingly secure operating systems, in which Apple has chosen not to create a back door.
Apple also calls out the DOJ’s technical ignorance.
The government’s assertion that “there is no reason to think that the code Apple writes in compliance with the Order will ever leave Apple’s possession” … simply shows the government misunderstands the technology and the nature of the cyber-threat landscape. As Apple engineer Erik Neuenschwander states:
I believe that Apple’s iOS platform is the most-attacked software platform in existence. Each time Apple closes one vulnerability, attackers work to find another. This is a constant and never-ending battle. Mr. Perino’s description of third-party efforts to circumvent Apple’s security demonstrates this point. And the protections that the government now asks Apple to compromise are the most security-critical software component of the iPhone—any vulnerability or back door, whether introduced intentionally or unintentionally, can represent a risk to all users of Apple devices simultaneously.
… The government is also mistaken in claiming that the crippled iOS it wants Apple to build can only be used on one iPhone:
Mr. Perino’s characterization of Apple’s process . . . is inaccurate. Apple does not create hundreds of millions of operating systems each tailored to an individual device. Each time Apple releases a new operating system, that operating system is the same for every device of a given model. The operating system then gets a personalized signature specific to each device. This personalization occurs as part of the installation process after the iOS is created.
Once GovtOS is created, personalizing it to a new device becomes a simple process. If Apple were forced to create GovtOS for installation on the device at issue in this case, it would likely take only minutes for Apple, or a malicious actor with sufficient access, to perform the necessary engineering work to install it on another device of the same model.
. . . [T]he initial creation of GovtOS itself creates serious ongoing burdens and risks. This includes the risk that if the ability to install GovtOS got into the wrong hands, it would open a significant new avenue of attack, undermining the security protections that Apple has spent years developing to protect its customers.
And, not surprisingly, Apple angrily attacks the DOJ’s bogus misleading use of Apple’s transparency report statements about responding to lawaful requests for government information in China, by pointing out how that’s quite different than this situation:
Finally, the government attempts to disclaim the obvious international implications of its demand, asserting that any pressure to hand over the same software to foreign agents “flows from [Apple’s] decision to do business in foreign countries . . . .”. Contrary to the government’s misleading statistics …, which had to do with lawful process and did not compel the creation of software that undermines the security of its users, Apple has never built a back door of any kind into iOS, or otherwise made data stored on the iPhone or in iCloud more technically accessible to any country’s government…. The government is wrong in asserting that Apple made “special accommodations” for China, as Apple uses the same security protocols everywhere in the world and follows the same standards for responding to law enforcement requests.
Apple also points out that the FBI appears to be contradicting itself as well:
Moreover, while they now argue that the FBI’s changing of the iCloud passcode—which ended any hope of backing up the phone’s data and accessing it via iCloud—“was the reasoned decision of experienced FBI agents”, the FBI Director himself admitted to Congress under oath that the decision was a “mistake”…. The Justice Department’s shifting, contradictory positions on this issue—first blaming the passcode change on the County, then admitting that the FBI told the County to change the passcode after the County objected to being blamed for doing so, and now trying to justify the decision in the face of Director Comey’s admission that it was a mistake—discredits any notion that the government properly exhausted all viable investigative alternatives before seeking this extraordinary order from this Court.
On the Constitutional questions, again Apple points out that the DOJ doesn’t appear to understand what it’s talking about:
The government begins its First Amendment analysis by suggesting that “[t]here is reason to doubt that functional programming is even entitled to traditional speech protections” … , evincing its confusion over the technology it demands Apple create. Even assuming there is such a thing as purely functional code, creating the type of software demanded here, an operating system that has never existed before, would necessarily involve precisely the kind of expression of ideas and concepts protected by the First Amendment. Because writing code requires a choice of (1) language, (2) audience, and (3) syntax and vocabulary, as well as the creation of (4) data structures, (5) algorithms to manipulate and transform data, (6) detailed textual descriptions explaining what code is doing, and (7) methods of communicating information to the user, “[t]here are a number of ways to write code to accomplish a given task.”… As such, code falls squarely within the First Amendment’s protection, as even the cases cited by the government acknowledge…
Later it points out that the DOJ’s claim that since Apple can write such code however it wants it’s not compelled speech, Apple points out that their argument says the exact opposite:
The government attempts to evade this unavoidable conclusion by insisting that, “[t]o the extent [that] Apple’s software includes expressive elements . . . the Order permits Apple to express whatever it wants, so long as the software functions” by allowing it to hack into iPhones…. This serves only to illuminate the broader speech implications of the government’s request. The code that the government is asking the Court to force Apple to write contains an extra layer of expression unique to this case. When Apple designed iOS 8, it consciously took a position on an issue of public importance…. The government disagrees with Apple’s position and asks this Court to compel Apple to write new code that reflects its own viewpoint—a viewpoint that is deeply offensive to Apple.
The filing is basically Apple, over and over again, saying, “uh, what the DOJ said was wrong, clueless, technically ignorant, or purposely misleading.” Hell, they even attack the DOJ’s claim that the All Writs Act was used back in 1807 to force Aaron Burr’s secretary to decrypt one of Burr’s cipher-protected letters. Apple points out that the DOJ is lying.
The government contends that Chief Justice Marshall once ordered a third party to “provide decryption services” to the government…. He did nothing of the sort, and the All Writs Act was not even at issue in Burr. In that case, Aaron Burr’s secretary declined to state whether he “understood” the contents of a certain letter written in cipher, on the ground that he might incriminate himself…. The Court held that the clerk’s answer as to whether he understood the cipher could not incriminate him, and the Court thus held that “the witness may answer the question now propounded”—i.e., whether he understood the letter…. The Court did not require the clerk to decipher the letter.
If anything, to be honest, I’m surprised that Apple didn’t go even harder on the DOJ for misrepresenting things. Either way, Apple is pretty clearly highlighting just how desperate the DOJ seems in this case.
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