Thursday, February 25, 2016

Apple's 'Motion To Vacate' Response
To The FBI's Court Challenge


Today, Apple released their 65 page 'Motion To Vacate' to the US Central District Court, Eastern Division of California. MacNN offers an initial review of the document as well as a source link and the ability to read it or download it via Scribd.

Apple tells court Constitution 'forbids' FBI compliance
Apple has now presented a legal response that officially challenges the Department of Justice over its demands that the company creates access to an iPhone sized as part of the San Bernardino workplace violence case, which the FBI has consistently characterized as a "terrorist" incident -- a move critics say is really the agency leveraging the tragedy in an effort to weaken privacy laws, and which Apple's attorney's called "forbidden" by the Fourth Amendment of the US Constitution.

"This is not a case about one isolated iPhone," begins the 65-page document. It sets out to establish Apple's perspective that the government's demands mean nothing short of creating "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." . . .
~ ~ ~ ~ ~

Here is the first paragraph of the Introduction of Apple's Motion To Vacate:
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. . .
And the Conclusion:
Apple has great respect for the professionals at the Department of Justice and FBI, and it believes their intentions are good. Moreover, Apple has profound sympathy for the innocent victims of the attack and their families. However, while the government’s desire to maximize security is laudable, the decision of how to do so while also protecting other vital interests, such as personal safety and privacy, is for American citizens to make through the democratic process. Indeed, examples abound of society opting not to pay the price for increased and more efficient enforcement of criminal laws. For example, society does not tolerate violations of the Fifth Amendment privilege against self-incrimination, even though more criminals would be convicted if the government could compel their confessions. Nor does society tolerate violations of the Fourth Amendment, even though the government could more easily obtain critical evidence if given free rein to conduct warrantless searches and seizures. At every level of our legal system—from the Constitution, to our statutes, common law, rules, and even the Department of Justice’s own policies—society has acted to preserve certain rights at the expense of burdening law enforcement’s interest in investigating crimes and bringing criminals to justice. Society is still debating the important privacy and security issues posed by this case. 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.
Skimming through the document, it turns out that Apple applies three elements of the Bill of Rights of the US Constitution. The First, Fourth and Fifth Amendments! This is an effective shotgun blast at the assertions of the FBI and Department of Justice.

Rather than quote or comment further, I'd rather everyone digested the document in whole and review it thereafter, including myself.


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