The Seven Most Vitriolic Passages in DOJ’s Response to Apple

Prosecutors demanding that Apple write software to defeat its own security filed a legal brief full of venom, smears, and innuendo.

Photo: Matt Slocum/AP

In case there was ever any doubt, the Justice Department declared war on Apple on Thursday.

Prosecutors demanded that a federal judge force Apple to unlock San Bernardino killer Syed Rizwan Farook’s iPhone in a brief that bristled with so much venom that Apple’s top lawyer, Bruce Sewell, said it “reads like an indictment.”

Like the legal motion from Apple that inspired it, years from now, people will look back at this brief and recall:

1. When the DOJ said Apple got itself into this mess in the first place:

This burden, which is not unreasonable, is the direct result of Apple’s deliberate marketing decision to engineer its products so that the government cannot search them, even with a warrant.

2. When the DOJ mocked Apple for suggesting it cared about its customers’ rights:

Instead of complying, Apple attacked the All Writs Act as archaic, the Court’s Order as leading to a “police state,” and the FBI’s investigation as shoddy, while extolling itself as the primary guardian of Americans’ privacy.

3. When the DOJ accused Apple of subverting the Bill of Rights, the separation of powers, and democracy:

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.

4. When the DOJ tried to belittle Apple and its supporters for being alarmist about totally irrelevant things, like privacy and security:

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.”

5. When the DOJ insisted it was being nice, and could just take whatever it wanted if it felt like it, and said it in the snidest way possible:

For the reasons discussed above, the FBI cannot itself modify the software on Farook’s iPhone without access to the source code and Apple’s private electronic signature. The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers.

6. When the DOJ suggested that Apple wouldn’t face all these terrible burdens if it didn’t help so many criminals and terrorists:

Next, Apple argues that the Order is unduly burdensome because, if it complies here, it is likely to face other AWA orders in the future. By accumulating its hypothetical future burdens, Apple suggests that because so much criminal evidence is hidden on its warrant-proof iPhones, it should not be compelled to assist in gathering evidence related to the terrorist attack in San Bernardino. Apple is wrong.

7. When the DOJ said the All Writs Act has never been and could never be abused because judges are so awesome:

As the decades since New York Telephone have shown, as indeed the centuries since 1789 have proven, courts’ exercise of power under the Act does not lead to a headlong tumble down a slippery slope to tyranny. That is because the Act itself — by relying upon the sound discretion of federal judges and by being subordinate to specific congressional legislation addressing the particular issue — builds in the necessary safeguards.

Sewell, Apple’s senior vice president of legal and global security, was outraged.

“In 30 years of practice, I don’t think I’ve 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,” he said.

“For the first time 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.”

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