Apple’s Motion to Vacate FBI Order

A clear, cogent read. I often shy away from reading legal motions because they’re so often written in dense legalese, but this one is clear.

This stuck out to me:

Congress knows how to impose a duty on third parties to facilitate the government’s decryption of devices. Similarly, it knows exactly how to place limits on what the government can require of telecommunications carriers and also on manufacturers of telephone equipment and handsets. And in CALEA, Congress decided not to require electronic communication service providers, like Apple, to do what the government seeks here. Contrary to the government’s contention that CALEA is inapplicable to this dispute, Congress declared via CALEA that the government cannot dictate to providers of electronic communications services or manufacturers of telecommunications equipment any specific equipment design or software configuration.

In the section of CALEA entitled “Design of features and systems configurations,” 47 U.S.C. § 1002(b)(1), the statute says that it “does not authorize any law enforcement agency or officer —

(1) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.

(2) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.

What Apple is arguing is that the All Writs Act is intended only to fill the gaps covering scenarios not covered by other laws, but CALEA (the Communications Assistance for Law Enforcement Act) is a law that was passed specifically to cover exactly this sort of scenario. This strikes me as a very compelling argument.

★ Thursday, 25 February 2016