
Apple Files Motion to Vacate , Says FBI Seeks 'Dangerous Power' - dmitrygr
http://www.macrumors.com/2016/02/25/apple-files-motion-to-vacate-fbi-order/
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dmitrygr
This Motion is wonderful!

<<Congress has never authorized judges to compel innocent third parties to
provide decryption services to the FBI.>>

<<The government says: “Just this once” and “Just this phone.” But the
government knows those statements are not true; indeed the government has
filed multiple other applications for similar orders, some of which are
pending in other courts. And as news of this Court’s order broke last week,
state and local officials publicly declared their intent to use the proposed
operating system to open hundreds of other seized devices—in cases having
nothing to do with terrorism. If this order is permitted to stand, it will
only be a matter of days before some other prosecutor, in some other important
case, before some other judge, seeks a similar order using this case as
precedent. Once the floodgates open, they cannot be closed, and the device
security that Apple has worked so tirelessly to achieve will be unwound
without so much as a congressional vote.>>

<<federal courts themselves have never recognized an inherent authority to
order non-parties to become de facto government agents in ongoing criminal
investigations.>>

<<Apple is a private company that does not own or possess the phone at issue,
has no connection to the data that may or may not exist on the phone, and is
not related in any way to the events giving rise to the investigation. This
case is nothing like New York Telephone Co., where there was probable cause to
believe that the phone company’s own facilities were “being employed to
facilitate a criminal enterprise on a continuing basis.” Id. at 174>>

<<Apple is not a “highly regulated public utility with a duty to serve the
public.” >>

<<The All Writs Act does not allow the government to compel a manufacturer’s
assistance merely because it has placed a good into the stream of commerce.
Apple is no more connected to this phone than General Motors is to a company
car used by a fraudster on his daily commute. >>

<<And if it succeeds here against Apple, there is no reason why the government
could not deploy its new authority to compel other innocent and unrelated
third-parties to do its bidding in the name of law enforcement. 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>>

<<Indeed, under the government’s formulation, any party whose assistance is
deemed “necessary” by the government falls within the ambit of the All Writs
Act and can be compelled to do anything the government needs to effectuate a
lawful court order. While these sweeping powers might be nice to have from the
government’s perspective, they simply are not authorized by law and would
violate the Constitution.>>

<<Under well-settled law, computer code is treated as speech within the
meaning of the First Amendment [..] The Supreme Court has made clear that
where, as here, the government seeks to compel speech, such action triggers
First Amendment protections.>>

<<The government’s desire to leave no stone unturned, however well
intentioned, does not authorize it to cut off debate and impose its views on
society.>

<<Apple would not agree to sign GovtOS voluntarily because it is not software
that Apple wants created, deployed or released.>>

And this last gem:

<<Once the operating system is created it will need to go through Apple’s
quality assurance and security testing process.>>

