Apple and the Justice Department enter the ‘open hostilities’ phase of iPhone unlocking case

A 43-page rebuttal from the Justice Department today characterized Apple’s earlier response to an iPhone unlocking request as “corrosive.” Shortly thereafter, an Apple press conference attended by TechCrunch provided a rejoinder from two Apple executives, including General Counsel Bruce Sewell, who said that “the tone of the brief reads like an indictment.”

For background, don’t forget to dive into our coverage here and our timeline of events here.

The DoJ

The Department of Justice released a 43-page document that alleges, among other things, that Apple has engaged in “false,” “corrosive” rhetoric regarding the case.

Apple’s rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government.

The documents, made available by CNBC, frame a portrait of Apple misrepresenting the situation through “diversion” to make the conversation about encryption on a grand scale rather than the one device the government is saying it needs access to.

Apple and its amici try to alarm this Court with issues of network security, encryption, back doors, and privacy, invoking larger debates before Congress and in the news media. That is a diversion. Apple desperately wants—desperately needs—this case not to be “about one isolated iPhone.”

The government’s document ultimately recommended that the Court deny Apple’s motion and compel the company “to assist the FBI in unlocking Farook’s iPhone.”

Apple, of course, disagrees.


Sewell delivered an on-the-record statement in the wake of the DoJ filing to reporters today which came out swinging.

“The tone of the brief reads like an indictment. We’ve all heard director Comey and Attorney General Lynch thank Apple for its consistent help in working with law enforcement. Director Comey’s own statement, that there are no demons here? We certainly wouldn’t conclude it from this brief,” said Sewell.

“In 30 years of practice, I don’t think I’ve ever seen a legal brief that was more intended to smear the other side with false accusations and innuendo, and less intended to focus on the real merits of the case.

“For the first time ever, we see an allegation that Apple has deliberately made changes to block law enforcement requests for access. This should be deeply offensive to everyone that reads it. An unsupported, unsubstantiated effort to vilify Apple rather than confront the issues in the case.”

“To do this in a brief before a magistrate judge just shows the desperation that the Department of Justice now feels,” Sewell continued.

“We would never respond in kind, but imagine Apple asking a court whether the FBI could be trusted because, there is a real question about whether J. Edgar Hoover ordered the assassination of Kennedy, see as our supporting evidence,” Sewell added, in a statement that he later clarified as meant to be humorous, in an incredulous way.

“We add security features to protect our customers from hackers and criminals, and the FBI should be helping to support us in this because it keeps everyone safe. To suggest otherwise is demeaning. It cheapens the debate and it tries to mask the real and serious issues. I can only conclude the DoJ is so desperate at this point that it has thrown all decorum to the wind,” continued Sewell.

“Look, we know there are great people in the DoJ and the FBI. We work shoulder-to-shoulder with them all the time. That’s why this cheap shot brief surprises us so much — we help when we’re asked to. We’re honest about what we can and can’t do. Let’s at least treat one another with respect and get this case before the American people in a responsible way. We are going to court to exercise our legal rights. Everyone should beware, because it seems like disagreeing with the Department of Justice means you must be evil and anti-American. Nothing could be further from the truth.”

Some interesting particulars

There are some other interesting particulars to pull out of these sorties. First, Apple notes that the DoJ filing is attempting to reframe the resetting of the iCloud password as intentional. Note that this is something that has already been characterized (in official statements) by FBI Director James Comey as a mistake. Doing so removed avenues of investigation that the FBI could have taken without having to force Apple to unlock the device. This reframing is a sort of “retconning” that the DoJ could be attempting in order to downplay its culpability in the matter, thereby weakening its case in the courts.

Second, the DoJ filing is clearly attempting to attack the wording and positioning Apple has taken in its opposition, rather than its technical or policy-based underpinnings. This is one tactic, to be sure, but it seems like a fairly brittle one when put to any torsion in the courts. While the battle has been one of public opinion, focusing primarily on the way Apple chooses to say what it wants to say, rather than what it is saying, could come back to bite the DoJ here.

And even after statements that Apple’s arguments are not about the wider issues of encryption, the DoJ goes on to make a not-so-subtle threat that it could move to force Apple to hand over signing keys to its core software — the atomic war option when it comes to user privacy, essentially ending whatever security any private citizen with an iPhone has when it comes to expectations of privacy. Any iPhone would then be at the whims of the DoJ’s desire to access it and its ability to utilize the same broad All Writs Act applications it used with Apple to peek wherever it wanted.

Lastly, an Apple lawyer made it clear on the call that Apple only stores data from Chinese customers on its servers in China — and that this data is completely encrypted. “Apple appears to have made special accommodations in China as well: for example, moving Chinese user data to Chinese government servers, and installing a different WiFi protocol for Chinese iPhones,” reads the DoJ document. But that encrypted data is subject to a similar information request structure as that to which Apple has already complied in many occasions in the US. The DoJ is drawing a false equivalence here between lawful data requests and its current request of Apple in this case: that it intentionally create new software that cripples the security of its devices.

The war only gets louder and more accusatory on both sides, but we’re at the stage where it is getting beneficial for both sides to attack the manner in which the rebuttals are being delivered — their character — rather than the substance of those rebuttals — their content.

Apple is scheduled to appear later this month before the judge and says it will file a response to today’s DoJ brief by the deadline, March 14th.

Apple vs FBI