[Cryptography] USG v. Apple, Apple Motion to Vacate Decrypt Order

[Henry Baker]

At 07:40 PM 2/25/2016, Richard Outerbridge wrote:
>> On 2016-02-25 (56), at 19:34:50, Henry Baker <hbaker1 at pipeline.com> wrote:
>> 
>> At 01:48 PM 2/25/2016, John Young wrote:
>>> USG v. Apple, Apple Motion to Vacate Decrypt Order <https://t.co/ZOvJXNs0Bx>https://cryptome.org/2016/02/usg-apple-016.pdf (415 pp, 19.5MB)
>> 
>> So Apple's reply is 9x the size of DOJ's motion.
>
>OK, so I'm an overall ignorant Canuck Canadian.
>
>Doesn't this all boil down to a 2nd Amendment argument?

I am not a lawyer, but (IANALB):

Most of Apple's argument claims that the All Writs Act isn't operative here.

"For example, if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone's user?  Nothing."

Indeed.  Apple didn't just pull these examples out of thin air; the U.S. govt has engaged in each and every one of these activities in the past, both at the FBI criminal level and the NSA national security level.

So when is Apple going to offer a *hardware switch* that can turn off the microphone and the camera in such a way that no software can bypass this switch?

"If Apple creates new software to open a back door, other federal and state prosecutors -- and other government agencies -- will repeatedly seek orders compelling Apple to use the software to open the back door for tens of thousands of iPhones.  Indeed, Manhattan District Attorney Cyrus Vance, Jr., has made clear that federal and state governments want access to *every* phone in a criminal investigation."  [** indicates italics]

"By forcing Apple to write code to compromise its encryption defenses, the Order would impose substantial burdens not just on Apple, but on the public at large.  And in the meantime, nimble and technologically savvy criminals will continue to use other encryption technologies, while the law-abiding public endures these threats to their security and personal liberties -- an especially perverse form of *unilateral disarmament* in the war on terror and crime." [emphasis supplied]

"For example, under the same legal theories advocated by the government here, the government could argue that it should be permitted to force citizens to do all manner of things 'necessary' to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant, or requiring a journalist to plant a false story in order to help lure out a fugitive, or forcing a software company to insert malicious code in its auto-update process that makes it easier for the government to conduct court-ordered surveillance."

Once again, Apple isn't pulling these examples out of thin air; the govt has done each of these things in past cases.

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Apple does argue First and Fifth Amendment issues.

First Amendment.  Apple claims that writing new code is "speech", and "speech" cannot be compelled.  So far, Apple hasn't used the First Amendment to bar it or anyone else from using its crypto keys, but you know that that argument is coming.

Fifth Amendment.  Apple claims that DOJ is violating Apple's Fifth Amendment right to due process.

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So far, Apple hasn't used a Third Amendment theory that placing govt-required code into a cellphone is equivalent to quartering soldiers:

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner ..."

https://en.wikipedia.org/wiki/Third_Amendment_to_the_United_States_Constitution