As Apple raged in court that the Founding Fathers “would be appalled” at the FBI’s demand for a backdoor into the iPhone, it was leaked that FBI Director James Comey was meeting with China’s head of state surveillance about source code access.
Apple Inc, replied to the Department of Justice’s most recent filing by stating that the FBI and the government have no right under law to use the 227-year-old ‘All Writs Acts’ to compel Apple to redesign its operating system to defeat its encryption by building a backdoor into its iPhones.
The world’s largest tech company quoted a decision from the 9th US Circuit in 1979 to claim the All Writs Act cannot be stretched to fit this case because to do so “would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction.”
Apple claimed in its filing that the company had already provided the FBI as much help as they can, and contends that the court does not have the authority to force it to write a special version of iOS.
The Department of Justice’s March 10 filing defended the U.S. government’s use of the “All Writs Act” by stating that its position was justified based on a two-century-old precedent: “Congress gave courts a means of ensuring that their lawful warrants were not thwarted by third parties like Apple.”
Apple’s latest salvo in a scorched-earth war between “the planet’s most powerful government and its most valuable company,” demonstrates that both sides have no intention of negotiating a settlement, and that the high-stakes confrontation is escalating toward a constitutional clash at the Supreme Court.
In what legal observers called a “carefully calibrated threat” to panic Apple, the U.S. Justice Department ten days earlier suggested that if Apple does not cooperate with law enforcement, it may demand that Apple turn over its software “source code” and “signing key” that validates software as coming from Apple.
Prosecutors pointed out that source code is sometimes inspected during lawsuits over intellectual property, such as Apple winning permission to review some of Samsung’s source code in a patent infringement case.
Gaining access to such deep intellectual property from Apple means the U.S. government could then easily develop its own spying software and trick any iPhone into installing it. Soon, anyone using any Apple device would be unable to tell whether they were using authentic Apple software or merely a government overlay to spy continuously on the user.
The FBI let it be known that while Apple was filing its defense against the U.S. government snooping, Comey was in Beijing to meet with the head of China’s director of state security surveillance. According to Reuters, Comey and Public Security Minister Guo Shengkun discussed ways to “deepen law enforcement and security cooperation.”
The FBI claimed the diplomatic meeting was an effort to warm a relationship that has been chilled because of widespread Chinese hacking of the U.S. government and American corporations. But the timing of the conclave made it clear that Comey and Shengkun are cooperating to pressure Apple into turning over a backdoor to authorities.
The FBI is also waging its war against encryption by enlisting its supporters to publicly hammer Apple. Stewart Baker, former a former general counsel for the NSA and chief policy expert for Homeland Security, taunted Apple in a Washington Post op-ed by asking Apple to disclose “just how much work you’ve already done for repressive regimes surveilling their own people.”
Baker was referring to the FBI’s claim that Apple turned over its WAPI wireless standard source-code to China in order to be allowed to grow their market share in the world’s largest smartphone market. The FBI claims that accommodation with the Chinese authorities is virtually the same type of access that Apple is now denying to the FBI.
Apple has also received scathing press from some of the families of victims and survivors of the San Bernardino terrorist attack, who indicated that they intend to file a brief in support of the FBI. Apple has also been criticized by the National Sheriffs’ Association, which claimed that Apple is “putting profit over safety” and “has nothing to do with privacy.”