Apple to argue that FBI court order violates its free-speech rights

“In Apple’s fight to knock down a court order requiring it to help FBI agents unlock a killer’s iPhone, the tech giant plans to argue that the judge in the case has overreached in her use of an obscure law and infringed on the company’s 1st Amendment rights, an Apple attorney said Tuesday,” Maura Dolan and Joel Rubin report for The Los Angeles Times.

“Theodore J. Boutrous — one in a pair of marquee lawyers the technology company’s hired to wage its high-stakes legal battle — outlined the arguments Apple plans when it responds to the court order this week,” Dolan and Rubin report. “At the heart of Apple’s response, Boutrous said, will be an objection to the use of the All Writs Act as the legal basis of the order compelling the company to assist the FBI.”

“‘The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech,’ Boutrous said in a brief interview with The Times. Boutrous said courts have recognized that the writing of computer code is a form of expressive activity — speech that is protected by the 1st Amendment,” Dolan and Rubin report. “He indicated that Apple would argue that Congress, not the courts, is the proper venue for a debate about ‘the security and privacy of citizens and law enforcement needs.'”

Read more in the full article here.

MacDailyNews Take: As we wrote on Monday:

The day the U.S. government can force anybody to write something is the day the United States of America as we know it dies.

If this keeps up, you won’t need to build a wall. Nobody will want in.

Of course, Apple has in its power to render even these methods, should they be forced upon the company, moot with future iOS updates that protect user privacy from government overreach.

It would be nice, however, not to have to depend on a company to enforce U.S. Constitutional rights, but rather to have a government – made up of people who swear oaths to the Constitution, no less – that protects citizens’ Constitutional rights jealously instead of wiping their asses with the document daily.

Apple, the U.S. government, and security – February 24, 2016
Congressman Ted Lieu asks FBI to drop demand that Apple hack iPhones – February 23, 2016
In the fight to hack iPhones, the U.S. government has more to lose than Apple – February 23, 2016
Here are the 12 other cases where the U.S. government has demanded Apple help it hack into iPhones – February 23, 2016
John McAfee blasts FBI for ‘illiterate’ order to create Apple iPhone backdoor – February 23, 2016
Some family members of San Bernardino victims back U.S. government – February 23, 2016
Apple supporters to rally worldwide today against U.S. government demand to unlock iPhone – February 23, 2016
U.S. government seeks to force Apple to extract data from a dozen more iPhones – February 23, 2016
Apple CEO Cook: They’d have to cart us out in a box before we’d create a backdoor – February 22, 2016
Tim Cook’s memo to Apple employees: ‘This case is about more than a single phone’ – February 22, 2016
Obama administration: We’re only demanding Apple hack just one iPhone – February 17, 2016


    1. Unless the government wants to make an example out of him and jail Tim Cook like was done to the anti-Muslim film maker that the liars Obama and Hillary said was the cause of the Benghazi attack. These people are not Apple fans like those found here on MDN and other Apple related websites and they lack scruples. Heck, they aren’t even appreciative of Apple’s insight in their perspective industry that has given us the iPhone in the first place.

      1. I was impressed listening to Ted Olson last night on Charlie Rose (PBS USA). I don’t know what bug was in Charlie Rose’s ear, but he was maniacally relentless in his questioning. Olson withstood it all with calm, drive, authority and sense.

        The entire interview will be up on Rose’s site this Thursday. Here is a portion of the interview:

      2. Apologies for stealing more comment real estate, but here’s another great portion of the interview with Ted Olson. It goes right to the core of the rhetorical nonsense being spun by the FBI and by those who do not understand what’s at stake:

  1. History will record with the greatest astonishment that those who had the most to lose did the least to prevent its happening. I think it’s time we ask ourselves if we still know the freedoms that were intended for us by the Founding Fathers… You and I have a rendezvous with destiny. We’ll preserve for our children this, the last best hope of man on earth, or we’ll sentence them to take the last step into a thousand years of darkness.Ronald Reagan, “A Time For Choosing,” October 27, 1964

  2. BUT! This is about only (1) Phone! Right? Only (1)….. iPhone. Right Comey? Just one “iPhone” The silence from The Hitlary Camp is deafening. Crickets in the camp of Hitlary. iPonder she approved of her mentors invasion of Poland. FCK YOU Hilary!!! LIAR! Just like the rest of this inept system.
    1 the invasion of the island: occupation, capture, seizure, annexation, annexing, takeover; storming, incursion, attack, assault. ANTONYMS withdrawal.
    2 an invasion of tourists: influx, inundation, flood, rush, torrent, deluge, avalanche, juggernaut.
    3 an invasion of my privacy: violation, infringement, interruption, intrusion, encroachment, disturbance, disruption, breach. ANTONYMS respect.
    MY RIGHT TO PRIVACY & SECURITY…. Read between the lines FBI .!..

    1. I am struggling to see the connection between the FBI (an American government agency asking for access to the iPhone) and Hillary (presumably, Clinton, a presidential candidate in the current election cycle in America).

      Your post sounds like a lot of political, partisan gibberish and gobbledygook. It makes very little sense.

        1. No. This is political philosophy, NOT law. All the spin in the world doesn’t change that fact that the Republicans in the Senate are breaking the law, specifically the US Constitution. I’d richly enjoy every one of them intent upon obstructing the process of replacing Judge Scalia thrown in jail for treason.

          I’d be saying the same thing if the Democrats pulled this illegal move.

          The law prevails over all politics. Why that is no longer a conservative ideal, I have NO idea apart from pointing at the damage done by the Neo-Conservatives.

          Back on topic: The free speech argument seems vague and weak to me. I’d squarely place this situation as a violation of the Fourth Amendment, a default violation of US citizen’s right to privacy. If the strategies of citizen privacy result in law enforcement never being able to access that citizen’s private information, with a valid warrant, so be it. This is the modern equivalent of a permanent safe box no one but the owner can open. Deal with it US government! The law prevails.

            1. That’s for sure. But it does point out that both parties have, ahem, interests that are contrary to their actual role of providing elected officials who ‘represent’ We The People. At this point I have no respect for either party.

            2. I watched the Democrats, 2009-2010, waste two years of control of both houses of the US Congress with their own swaggers and posturing while accomplishing nothing much but a poorly written healthcare law that stupid Pelosi told the Democrats not to bother reading until after they voted FOR it. Oops. Could she be more stupid? And of course the Affordable Care Act is gradually being torn to shreds and has NOT accomplished its goal of universal healthcare, nor will it ever.

              So again, I have no respect for either party.

        2. If the president were to follow what Scalia himself had thought about the lack of diversity on the SCOTUS, (s)he would nominate an atheist judge. One of Scalia’s frequent complaints was that SCOTUS is quite uniform in that they are all Yale or Harvard graduates, mostly from NYC or the East coast, and all either Catholics or Jews.

          Well, since atheists are profoundly underrepresented at all levels of government, the fairly logical conclusion would be that the next SCOTUS justice should be one. After all, the separation of church and state enshrined in the Constitution strongly suggests that court decisions shouldn’t be based on religious preference, or even on religious arguments (as L. Kraus had eloquently said recently).

          Regrettably, America would much prefer a Muslim justice than an atheist one. Same goes for presidents, regardless of the fact that the moral values exhibited by various American presidents and other high officials has very often been in the directly inverse proportion to the strength and commitment to their personal religious beliefs and expression thereof (i.e. most nominally evangelical officials showed lowest moral standards, while the most secular ones often appeared to be morally the most virtuous). This makes a lot of sense, and can be explained by a very simple laconic statement: when an atheist is nice to you, he isn’t doing it in order to ingratiate himself to a higher being in order to secure passage to heaven; he is doing it because he is genuinely nice. In other words, for many who are religious, the dogma is a powerful, and for some, the only controller of their moral compass. For atheist, there isn’t such a controller; they are actually genuine in their moral values.

    1. And with the current political belligerence in the Senate, it seems very likely that SCOTUS may not even produce a verdict, splitting 4-4 on it, unless by some miracle, the belligerent party in the political scuffle around the SCOTUS nominee miraculously decides to back down.

      I must say, I’m fascinated by this intransigence in American senate. The presumable argument is: “Let the people decide; a lifetime nomination cannot be made by a “lame-duck” president”. This sounds rather strange; what is the definition of “lame-duck”? The normal dictionary definition states it is an elected official at the end of his mandate, AFTER his successor had been elected, but BEFORE he took office. At present, the American president has another 11 months in office. Is the American senate asking the American people to let president do nothing? Probably not; so they are expecting the president to do his job for the next 11 months, except for this one thing, which is nominating a judge for a high court. So, they expect SCOTUS to limp along for the next year (or more; the new president will need some time to identify and present the nominee, and the senate will also need time to clear him/her). Now, what would have happened if this SCOTUS vacancy happened earlier? A month ago? Three months? Nine months? Exactly where is that line after which the president no longer has the right to nominate a judge for the highest court?

      For a foreigner, this is just very puzzling.

          1. This was well-known from before; not a new revelation. About the only difference is, this was said in the summer of a very bitter election year, and we are still in February. Exactly when is that ‘cutoff date’ after which a sitting ‘lame-duck’ president shouldn’t nominate (nor senate confirm) a SCOTUS candidate? There is always that “Thurmond Rule”, but that doesn’t apply here (it refers to only last six months of the presidency, and we’re still five months away from that). So, what exactly is that cut-off date?

            It is my feeling that, under current circumstances, the belligerents would put such deadline at four years before the end of the term…

        1. I don’t know about that, but one thing is rather clear: politically, quite many of them are gambling with their seats. Having SCOTUS crippled for over a year will be placed squarely at their feet. While most of them don’t need to worry about November, there are quite a few who might end up displaced because of this belligerence. It doesn’t take a political operative genius to build a opposing campaign around this, and it would be rather easy to label this action unconstitutional. I think we can be pretty sure that the president will soon announce a name, after which the media will kick in. The longer it drags on, especially if the ongoing presidential race keeps kicking it up, the worse it may be for those who are in “swing states”.

          In the end, I wouldn’t be surprised if a few of those currently very vocally opposed to any confirmation hearings this year end up changing their mind, and with enough such people, the SCOTUS may be restored before the current president leaves office.

          As for the next president, I don’t think it is likely this nation will elect a republican; none of the nominees have broad enough of an appeal beyond their base. Minority vote has become large enough to completely neutralise the white male evangelical vote that helped conservatives in the past. Between the Hispanic voters and Women, there is enough swing votes to elect another Clinton, for better or for worse. From that aspect, the whole SCOTUS intransigence is moot.

          But all this is just an opinion of a foreigner with no horse in the race…

      1. I am an american, and it is somewhat puzzling to me too, but i think the root of the problem is the present republican run house and senate is so immature that they won’t play nice, they want to play ball by their rules, and they don’t have the votes to change the rules so they just throw a temper tantrum and take their ball and go home, much to the detriment of the people of the united states for which they stand. Short sighted thinking, and i hope we the people can get our $#!+ together and vote some mature, rational, big hearted representatives that can be good sports. Otherwise it is starting to look like game of thrones

        Oh yeah, these immature brats are also spoiled, ROTTEN!! by all the campaign contributions and lobby funds that reward them for their intransigence (both parties are complicit here, as is the great hubris of capitalism perverting the first amendment to the point that corporations can dump money into the political process in unlimited sums)

        Hope this american has shed some light on your confusion, these observations are but a few i have gleaned in my time watching this mess unfold, i think it will get worse before it gets better if history repeats itself (which it nearly always does with a collective electorate with as much ignorance as ours)

  3. This iPhone was owned by the County of San Bernardino and was provided as part of the employment with the county. There is no expectation of privacy with use of an item provided by and owned by your employer.

    In this case ONLY, Apple should not provide a key for access by law enforcement but provide all the data from the phone to law enforcement.

    1. There is no way Apple can do that. Apple cannot unlock that phone, and without unlocking, they can’t decrypt the data. This is why FBI is asking for a modified iOS: they want to be able to try as many times as posible to unlock the device, until they succeed (without blocking or wiping it). Once unlocked, they can access the data they need.

      In other words, Apple is asked to develop a modified operating system, a hack, that would significantly weaken the passcode lock on the device in question, allowing anyone with proper tools to eventually crack it.

  4. Unfortunately, there are already precedents where the counts have found that being in business gives up the protection against being compelled to “speak” in a manner that the business disagrees with.

    Here, have some wedding cake.

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