We Read The DOJ's Latest Apple Filing to Highlight All of Its Misleading Claims

by Mike Masnick
Techdirt
Mar. 11, 2016

The Justice Department has now filed its response to Apple's motion to vacate being forced to undermine the security features of Syed Farook's work iPhone. It's... quite a piece of work. The DOJ is pulling out all the stops in this one, and it seems to be going deeper and deeper into the ridiculous as it does so. Of course, it repeats many of the arguments in its earlier filings (both its original application for the All Writs Order as well as its Motion to Compel -- which even the judge told the DOJ she didn't think it should file). For example, it continues to assert that this should be judged on the "three factor test" that it made up from a Supreme Court decision that doesn't actually have a three factor test.

But the crux of the DOJ's argument is basically "how dare Apple make a warrant-proof phone" and thus it's Apple's fault that they haven't made it easy for the FBI to get what it wants. This argument is bonkers on many levels. Let's dig in:
By Apple's own reckoning, the corporation--which grosses hundreds of billions of dollars a year--would need to set aside as few as six of its 100,000 employees for perhaps as little as two weeks. 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.
This is a purposeful misrepresentation. The issue here is that the judge has made it clear that the key issue that she's concerned with is whether or not the request from the DOJ represents an "unreasonable burden" on Apple -- as the "burden" is the only actual test laid out in the US v. NY Telephone case the DOJ keeps pointing to. But Apple didn't present the time and manpower to show that it's the resources that are the unreasonable burden, but the potential impact on the safety and security of its customers. Focusing on the time is not the issue, but of course, the DOJ pretends it is.

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