Apple pushes back against Justice Dept., assails use of All Writs Act

Apple lobbed another volley at the Justice Department in the battle over unlocking an iPhone 5c confiscated in an investigation of a terrorism case.
Apple lobbed another volley at the Justice Department in the battle over unlocking an iPhone 5c confiscated in an investigation of a terrorism case.

Apple reiterated in court documents Tuesday that the Justice Department had exceeded its authority and pushed past the limits of All Writs Act (AWA), which they're invoking to force Apple to crack an iPhone 5c used by San Bernardino shooter Syed Rizwan Farook.

In response to a filing by the feds last week that Apple General Counsel Bruce Sewell called a “cheap shot brief,” the company's latest brief accused the government of attempting "to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is." The AWA is a 1789 law federal prosecutors use to force tech companies, like Apple, to comply with orders to provide access to their devices.

And Apple tried to deflate the government's argument that the company's resistance to California magistrate Sheri Pym's order to assist the Federal Bureau of Investigation was nothing more than a marketing ploy.

In late February New York Judge James Orenstein, known as a Fourth Amendment advocate, bolstered the notion that the government had relied too heavily on the AWA, by noting in a ruling on a different iPhone case, that the government “failed to establish either that the AWA permits the relief it seeks or that, even if such an order is authorized, the discretionary factors I must consider weigh in favor of granting the motion.”

Specifically, the judge wrote in a 50-page ruling, “the established rules for interpreting a statute's text constrain me to reject the government's interpretation that the AWA empowers a court to grant any relief not outright prohibited by law.”

Indeed, it was Orenstein who first raised questions over prosecutors' request that the court order Apple to unlock an iPhone 5s that the Drug Enforcement Agency (DEA) had seized in a drug investigation. In an October memo, Orenstein took aim at the government's expansive use of the AWA and asked Apple to respond. But the judge's decision is not binding so it will have no legal influence over the iPhone case now playing out in the California court.

In Tuesday's filing, Apple said by the government's definition “short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up. The founders would be appalled."

The company contended that the 18th century AWA “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.'”

In a separate declaration in the case, Robert Ferrini, Apple's senior director of worldwide advertising and planning, said that of the 1,793 ads the company has run since introducing iOS 8, "not a single one has ever advertised or promoted the ability of Apple's software to block law enforcement requests for access to the contents of Apple devices."

The matter is due back before Pym's court March 22.

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