War of Words Escalates in Apple v. FBI

Litigators are notorious for waiting until the very last minute to file briefs. But lawyers for Apple Inc. beat a Friday deadline by more than 24 hours this past week with their first push to block a court order forcing the company to help the government access a passcode-protected iPhone used by one of the San Bernardino shooters.

The timing was calculated to ensure that the brief wouldn't get lost in a weekend news cycle likely to be dominated by the South Carolina Democratic primary, the Oscars and, of course, Donald Trump.

Both Apple and the government are vying to win in a federal magistrate's Riverside courtroom and to lay the groundwork for a potential appeal. But beyond the courtroom, it's clear the company and the government are also using the legal proceeding as a pulpit to appeal to the public and policy makers. Apple executives speaking on the condition that they not be named said Thursday that the brief writers intentionally steered clear of legal jargon where possible to make the filings approachable for a nonlegal audience.

"This is not a case about one isolated iPhone," Apple's lawyers at Gibson, Dunn & Crutcher and ZwillGen wrote at the opening of Thursday's filing. "Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe." The government has also used its court filings as a megaphone in the larger encryption fight, taking the unusual step of filing a motion with the court that they noted was "not legally necessary" and using it to counter messages coming from Apple CEO Tim Cook.

UC-Hastings College of the Law professor Rory Little said the fight for hearts and minds is likely to continue. "This is just an initial salvo in what is a really serious high-level policy discussion," Little said. "It's a really big question that is not going to be decided in any one case," he said. For outside counsel in the case, Apple has hired a team that includes experts on appellate and privacy law, as well as lawyers comfortable in the spotlight. Leading Apple's team at Gibson Dunn are former Solicitor General Theodore Olson and Theodore Boutrous Jr., signaling that the company is digging in for a prolonged fight. Both Olson and Boutrous also have experience litigating cases that involve a heavy public relations component, including the fight for marriage equality.

Little pointed out that Olson, whose wife died in the 9/11 attacks, also provides a powerful voice to counter the government's argument that Apple is depriving it of a necessary tool to fight terrorism. Apple has also enlisted ZwillGen's Marc Zwillinger, a former federal prosecutor who specializes in privacy law and regularly represents the company on related matters. UC-Davis School of Law professor Elizabeth Joh said that in cases that involve difficult technological issues, coming up with the most persuasive analogy can shape the outcome. Confronted with the order that the company defeat an iPhone security feature, Apple's lawyers have argued that the government is asking the company to create a "master key" to customer's phones or, put another way, to open a "back door." The government calls those metaphors overblown. Joh said there are risks in oversimplifying in either direction. "Is this really like a one-time-only key to a physically locked door? Or is it like the government forcing an innocent third party to create something against its will?" Joh said. "My concern is that an analogy, once adopted, could be dangerous if it is inaccurate in describing the technology at issue." OVERREACH OR OVERREACTION Earlier this month, U.S. Magistrate Judge Sheri Pym of the Central District of California signed off on a government request to compel Apple to help access data stored on the work phone of Syed Rizwan Farook, one of two people who carried out last year's mass shooting that killed 14 people in San Bernardino. The FBI says it has been stymied by a feature of Apple's mobile operating system that erases data after 10 consecutive unsuccessful passcode entries. Pym, who sits in Riverside, issued her ruling without prior briefing from the company's lawyers.

She granted the government's request for an order under the All Writs Act, an 18th century law that gives courts broad authority to issue orders to assist in ongoing investigations.

The public debate since Pym's ruling has been heated, with Apple CEO Tim Cook posting an open letter to customers online the day it was issued and sitting this past week for an interview with ABC News. It's clear from court filings in the case that Apple's lawyers as well as federal prosecutors are directing their arguments at an audience much broader than Pym.

Following Pym's order, federal prosecutors used a court brief to counter Cook's letter, arguing that Apple's objections to the order were based on "a perceived negative impact on its reputation and marketing strategy" rather than the law.

Requiring Apple to write software code that would modify its operating system "is not an unreasonable burden for a company that writes software code as part of its regular business," the DOJ lawyers wrote. Prosecutors contend that the phone could contain information and data that is otherwise unavailable to investigators.In their brief, Apple's lawyers point out that the Department of Justice has lobbied unsuccessfully to expand the reach of the Communications Assistance for Law Enforcement Act. The law, known as CALEA, defines the circumstances under which private companies must assist law enforcement electronic surveillance efforts. According to Apple's lawyers, the law requires companies to assist the government in decrypting communications only in cases where a company retains a copy of the decryption key—something they maintain Apple lacks for the phone in the San Bernardino case. "Congress has never authorized judges to compel innocent third parties to provide decryption services to the FBI," Apple's lawyers wrote. "Indeed, Congress has expressly withheld that authority in other contexts, and this issue is currently the subject of a raging national policy debate among members of Congress, the president, the FBI director, and state and local prosecutors."

University of North Texas Dallas College of Law professor Brian Owsley, a former federal magistrate judge in the Southern District of Texas, said that it's "telling" that CALEA doesn't require Apple to cooperate in this case. He also said that the government could be overreaching by invoking of the All Writs Act to make Apple write new software code. "The All Writs Act isn't designed to create new substantive requirements on anyone," Owsley said. "I think it is fair to say that Apple is being asked to do something that has not been asked before," he said.

In addition to attacking the federal government's authority under the All Writs Act, the company also maintains that the government's actions violate the company's constitutional rights. Apple argues that computer code is treated as speech under the First Amendment and the government is compelling it to write code that would work against the data security and privacy protections it built into its system. Apple's lawyers also claim the due process clause of the Fifth Amendment bars the government from forcing it to create the requested code.

Each of Apple's arguments are expressed, to the extent possible, in language that is easy to understand.

"The government says: 'Just this once' and 'Just this phone.' But the government knows those statement are not true," Apple states in its brief, adding: "Once the floodgates open, they cannot be closed." Diego M. Radzinschi/NLJ

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