Apple’s legal strategy, in a nutshell

As mentioned in the previous post, Apple filed a motion yesterday to vacate the FBI’s recent court order. There’s a hearing on this motion scheduled for March 22nd.

Here’s a link to the motion. If you want to dig in to the motion just a bit, follow the link and scroll down to the table of contents, to the section labeled ARGUMENT.

The two prongs of Apple’s argument are laid out there. They are:

  • The All Writs Act does not provide a basis to conscript Apple to create software enabling the government to hack into iPhones. You can read more about this in this post: The cost of what the FBI is asking Apple to do.

  • The Order would violate The First Amendment and The Fifth Amendment’s due process clause. You can read more about this argument here [AUTOPLAY].

The motion also brings up the Communications Assistance for Law Enforcement Act, referred to as CALEA. John Gruber wrote about CALEA here:

What Apple is arguing is that the All Writs Act is intended only to fill the gaps covering scenarios not covered by other laws, but CALEA (the Communications Assistance for Law Enforcement Act) is a law that was passed specifically to cover exactly this sort of scenario. This strikes me as a very compelling argument.

You can find CALEA here. One additional piece of CALEA also cited in the motion:

A telecommunications carrier shall not be responsible for decrypting, or ensuring the government’s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.

It should be noted that a version of CALEA that would have required a backdoor, known as CALEA II, was proposed and, ultimately, was not pursued.