As expected, Apple notes that this case is bigger than just one device and would set a dangerous precedent if upheld. Apple would be forced to write what it calls "GovtOS," a modified version of iOS that removes the passcode lock protections that prevent users from trying too many different passcode combinations.
This is not a case about one isolated iPhone. 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 demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance. The All Writs Act, first enacted in 1789 and on which the government bases its entire case, “does not give the district court a roving commission” to conscript and commandeer Apple in this manner. Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). In fact, no court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it.
Apple first argues that the All Writs Act does not provide a basis to conscript Apple to create software enabling the government to hack into iPhones.
"Congress has never authorized judges to compel innocent third parties to provide decryption services to the FBI. 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. Moreover, federal courts themselves have never recognized an inherent authority to order non-parties to become de facto government agents in ongoing criminal investigations. Because the Order is not grounded in any duly enacted rule or statute, and goes well beyond the very limited powers afforded by Article III of the Constitution and the All Writs Act, it must be vacated."
Apple also argues that the order would violate the First Amendment and the Fifth Amendment's due process clause, noting that under well-settled law, computer code is treated as speech within the meaning of the First Amendment.
"When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit. See, e.g., Hanna Decl. Ex. AA [Apple Inc., Privacy, Government Information Requests]. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views. This is, in every sense of the term, viewpoint discrimination that violates the First Amendment."
"In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from ‘arbitrary deprivation of [its] liberty by government.’"
Apple also notes that the government's suggestion to just "delete the program" after Apple uses it on "this one iPhone" would never work.
"Moreover, the government’s flawed suggestion to delete the program and erase every trace of the activity would not lessen the burden, it would actually increase it since there are hundreds of demands to create and utilize the software waiting in the wings."
Other tech companies including Google, Microsoft, and Facebook plan on filing motions that support Apple's fight against the FBI. The motion was filed in the United States District Court - Central District of California Eastern Division. A hearing is set for March 22, 2016 at 1:00 p.m. before Hon. Sheri Pym.
You can read the full motion below. Please follow iClarified on Twitter, Facebook, Google+, or RSS for updates.