Apple Files Motion To Vacate Court Order Forcing It To Unlock iPhone

ROBERT SIEGEL, HOST:

Apple has officially staked out its legal ground against the FBI. The technology giant filed a motion today. It's more than 350 pages long. It's a response to the federal court order telling the company to help authorities unlock an iPhone that had been used by a terrorist. Apple says the order violates both the First and Fifth Amendments to the Constitution and would set a dangerous precedent. Well, joining us now to talk about Apple's argument is Benjamin Wittes. He's a senior fellow in governance studies and editor-in-chief of the Lawfare blog at the Brookings Institution. Welcome to the program once again.

BENJAMIN WITTES: Thanks for having me.

SIEGEL: Magistrate Sheri Pym's order would force Apple to write computer code that would then allow the FBI to unlock the San Bernardino iPhone. In a nutshell, what's Apple's argument against that?

WITTES: So Apple's argument is the following. Unlike what the FBI says, the company contends this is not a case about a single phone. It's a case about hacking its phones in general. The law that the Bureau and the Justice Department cite, in the company's view, does not authorize what it's asking for. Moreover, the First Amendment, which prohibits compelled speech, prevents the Justice Department from forcing Apple to write code that it doesn't want to write and to defy its - to break its own systems. And the Fifth Amendment - due process protections - prevent it from being roped in this way in a fashion that so utterly, in its view, against its interests and desires.

SIEGEL: Focusing on the argument that it violates the First Amendment, is the point that writing code is a form of speech?

WITTES: Yes. So there is some legal precedent for the idea that source code is a form of expression and speech. And here, the Justice Department and the court would effectively be directing Apple to write code that it doesn't want to write and doesn't believe in, and it feels that that's, you know, inappropriate. The interesting thing about this - this is the argument that has gathered a lot of attention over the last few days. It is relatively subdued in the brief. It comes only at the end of the brief after a long discussion of the statutory authorities.

SIEGEL: Well, is there something remarkable or unprecedented in the court order in that it requires Apple to create something that doesn't exist? You know, go invent code that fits the following specs.

WITTES: So, look. I mean, it is certainly true that this court order goes a step further with respect to Apple than the government has ever gone before with respect to Apple, but that's actually because Apple has done some things in the last couple of years, like tightening all of its own ability to access its customers' data such that this situation really has not arisen that much before, right? Now that these systems are so tight that Apple can't even get in itself, we have a situation in which you have to ask, does the technical assistance requirements which generally require that companies, you know, help out to effectuate warrants - do they reach this far or not?

So yeah, I think it is a novel question, but it's not a surprising question at all, and it's not surprising that the government would ask given the circumstances of this case and the larger debate about what encryption is doing to government investigations.

SIEGEL: Can Apple argue that this places - that it would place an undue burden on the company, and is it, in effect, penalized for being so fabulously wealthy that it would appear to be able to bear any burden?

WITTES: So this is one of the, I think - one of the most important questions in the case, and it's actually more important in the immediate term that First Amendment question. So the legal standard is the government can get technical assistance from a company if it wouldn't be an undue burden to provide it. Apple has described in this brief the scope of the burden, and it's pretty considerable.

On the other hand, Apple is a company with the - one of the biggest market capitalizations in the world. And this is, you know, pocket change in resources to it. So one of the questions is, you know, do you have the same standard if you're a tiny, little startup that you do if you're a giant behemoth. And I don't think we know the answer to that question legally.

SIEGEL: Benjamin Wittes of the Brookings Institution - Ben, thanks.

WITTES: Thank you.

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