Apple General Counsel Blasts Justice Department For Crazy Filing

from the no-love-lost dept

It must be admitted that the Apple/FBI fight over iPhone encryption has had much more "outside the courtroom" drama than most cases -- what with both sides putting out their own blog posts and commenting publicly at length on various aspects. But things have been taken up a notch, it seems, with the latest. We wrote about the DOJ's crazy filing in the case, which is just chock full of incredibly misleading claims. Most of the time, when we call out misleading claims in lawsuits, the various parties stay quiet about it. But this one was apparently so crazy that Apple's General Counsel Bruce Sewell called a press conference where he just blasted the DOJ through and through. It's worth looking at his whole statement (highlights by me):
First, 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." Well, you certainly wouldn't conclude it from this brief. 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.

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. An unsupported, unsubstantiated effort to vilify Apple rather than confront the issues in the case.

Or the ridiculous section on China where an AUSA, an officer of the court, uses unidentified Internet sources to raise the spectre that Apple has a different and sinister relationship with China. Of course that is not true, and the speculation is based on no substance at all.

To do this in a brief before a magistrate judge just shows the desperation that the Department of Justice now feels. We would never respond in kind, but imagine Apple asking a court if the FBI could be trusted "because there is this real question about whether J. Edgar Hoover ordered the assassination of Kennedy — see ConspiracyTheory.com as our supporting evidence."

We add security features to protect our customers from hackers and criminals. And the FBI should be supporting 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 that the DoJ is so desperate at this point that it has thrown all decorum to the winds....

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 cannot 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 before 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.
Somehow, I don't think Apple and the DOJ will be exchanging holiday cards this year. Apple's reply brief is due on Tuesday. I imagine it'll be an interesting weekend in Cupertino.

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  • identicon
    Anonymous Coward, 11 Mar 2016 @ 8:44am

    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.

    We found the lawyer that has been snoozing the most folks! Right here at Apple no less!

    I am sure that Apple, and this lawyer in particular, has been the purveyor of some very nasty smear briefs of it own when it came time to defend its IP against Joe Public!

    I believe what the FBI is doing should be considered Treason, but I hardly feel sorry for Apple as the knife turns in its back. They have been in bed with the fed for a long time now... I hardly feel sorry for them getting their comeuppance.

    We were fucked before hand and we will be fucked even more no matter how this all shakes out. Apple never cared about us, it only cares what this might do to its bottom line. This you can guarantee.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 8:48am

      Re:

      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.
      Who here remembers Caldera?

      reply to this | link to this | view in chronology ]

    • identicon
      Wooozahhh, 11 Mar 2016 @ 9:36am

      Re:

      lol. The Appeal brief is simply telling the story from the FBI's side and their perspective, the facts, and citing relevant law. Nothing more. Apple's lawyer's response seems unprofessional and more of a publicity stunt.

      It's likely in that guys 30 year career he wrote similar briefs when litigating. Again, this is just Apple using public opinion, nothing more.

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 11 Mar 2016 @ 10:26am

        Re: Re:

        We must have read totally different briefs. The Fed's brief was hysterically unprofessional.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Mar 2016 @ 12:31pm

          Re: Re: Re:

          Yep, there just so happens to be loads thinly veil insults and unprofessional attitudes all over the place.

          The problem is that the government gets away with it more because people are more accepting of them being blithering idiots, but somehow expect Businesses to be better than that.

          reply to this | link to this | view in chronology ]

      • icon
        Kaemaril (profile), 11 Mar 2016 @ 10:29am

        Re: Re:

        Facts?

        "Next, contrary to Apple’s stated fears, there is no reason to think that the code Apple writes in compliance with the Order will ever leave Apple’s possession. Nothing in the Order requires Apple to provide that code to the government or to explain to the government how it works. "

        Outright LIE. The only way they could guarantee that the techniques and code involved in this exploit would not get out would be to never, ever, use any of the evidence obtained from the phone (if there's any even there to begin with, and there almost certainly isn't) in court.

        Otherwise, any defence lawyer is fully entitled to quiz Apple thoroughly on how the evidence was extracted, to insist his own forensics experts review how it was done, and so on.

        There's no way an Apple expert witness (and you guarantee one will be summoned) can go on the witness stand and say 'Sorry, how we did it is a secret. But trust us, it's all OK.'

        reply to this | link to this | view in chronology ]

        • icon
          Jeremy Lyman (profile), 11 Mar 2016 @ 11:55am

          Re: Re: Re:

          Hey, if they don't need you to prove that it works... then I can write an exploit to get into iPhones. Turns out the contents of everyone's encrypted disc is "go pound sand."

          reply to this | link to this | view in chronology ]

    • icon
      Paul Alan Levy (profile), 11 Mar 2016 @ 11:15am

      Inexperienced general counsel

      "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."

      I guess this guy hasn't been doing much litigating

      reply to this | link to this | view in chronology ]

    • identicon
      Blake Stevens, 11 Mar 2016 @ 2:31pm

      Surveillance Video

      Should the FBI release the San Bernardino surveillance video??

      Surveillance Cameras are scattered across the entire property.

      Apple wants to verify the official story.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 8:46am

    "For the first time we see an allegation that Apple has deliberately made changes to block law enforcement requests for access."

    No, they deliberately made changes to block Government unrequested access.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 10:24am

      Re:

      To be accurate the government never REQUESTS access. They demand it. Even if they initially package it as a request, it isn't. Case in point.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 11 Mar 2016 @ 10:28am

        Re: Re:

        The government makes requests in the same way that a mugger with a gun pointed at your head does. You can say no, but it's usually understood by all parties to be a very bad idea and detrimental to your well-being.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 8:46am

    "Everyone should beware because it seems like disagreeing with the Department of Justice means you must be evil and anti-American"

    Sounds like somebody hasn't been paying attention to the last 15 years. Welcome to the party.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 9:32am

      Re:

      ...Sounds like somebody hasn't been paying attention to the last 15 years...

      ONLY the last 15 years???

      Maybe it's accelerated and more noticeable but stuff like this has been happening long before, as far back as Prohibition and the ordaining of the income tax.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Mar 2016 @ 12:35pm

        Re: Re:

        Correct, the old agree with me or you are the evil guy has been going on since back when native earthlings had feudal systems.

        The same thing as saying drop trousers so we can verify the smell of a small child is not on your genitals or else we will know for sure you are a supporter of the terrorists and pedophiles if you refuse to co-operate.

        Truly "nothing new is under the sun!"

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 8:52am

    Offer the FBI and justice department a hammer. That should open it up.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 9:04am

    So much salt and fire.

    I didn't know that the DOJ and FBI were sponsoring a BBQ.

    What's being served?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Anonymous Coward, 11 Mar 2016 @ 9:29am

      Re:

      The Constitution with a side of Bill of Rights and a salad of Declaration of Independence. Should be good for vegetarians, since there is no meat left in any of these items.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 9:07am

    I should invest in popcorn...

    reply to this | link to this | view in chronology ]

  • icon
    Tim R (profile), 11 Mar 2016 @ 9:29am

    An Important Distinction

    "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 cannot do."

    This is the great duality of any government entity. The "great people" he refers to are the boots on the ground, agents that do all of the heavy lifting within both the DOJ and the FBI. They are the end nodes on the organizational chart, if they even show up there at all.

    After you elevate past a certain level, you cease to find useful people, and start coming across bureaucrats. Make no mistake. Comey and his ilk are not law enforcement. They're politicians.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 12:04pm

      Re: An Important Distinction

      Politicians, spindoctors, lobbyists, lawyers and often of arbitrary merit. The guys on the ground handle the day to day. The upper echelon is there to brutally crush whoever dare to defy them.

      DOJ is weighing in on this issue with ferosity and very little factual content. That seems like a sign of an unhealthy close personal relation rather than a professional legal one between DOJ and FBI. The government should go after the ball, rather than the player, if they are to get involved.

      reply to this | link to this | view in chronology ]

  • icon
    Berenerd (profile), 11 Mar 2016 @ 9:33am

    How do we vote for Apple's General Council for Most informative or funny post?

    reply to this | link to this | view in chronology ]

    • icon
      Killer_Tofu (profile), 11 Mar 2016 @ 10:04am

      Re: -- Cheap Attempt

      Here you go, quoted from the article:

      First, 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." Well, you certainly wouldn't conclude it from this brief. 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.

      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. An unsupported, unsubstantiated effort to vilify Apple rather than confront the issues in the case.

      Or the ridiculous section on China where an AUSA, an officer of the court, uses unidentified Internet sources to raise the spectre that Apple has a different and sinister relationship with China. Of course that is not true, and the speculation is based on no substance at all.

      To do this in a brief before a magistrate judge just shows the desperation that the Department of Justice now feels. We would never respond in kind, but imagine Apple asking a court if the FBI could be trusted "because there is this real question about whether J. Edgar Hoover ordered the assassination of Kennedy — see ConspiracyTheory.com as our supporting evidence."

      We add security features to protect our customers from hackers and criminals. And the FBI should be supporting 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 that the DoJ is so desperate at this point that it has thrown all decorum to the winds....

      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 cannot 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 before 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.

      reply to this | link to this | view in chronology ]

  • identicon
    AJ, 11 Mar 2016 @ 10:34am

    I feel like I'm sitting in the front row of a completely one sided fight. Every time the DOJ throws a punch, Apple just beats the snot out of them, and comes out a hero. If the DOJ doesn't stop soon, they'll be marginalized down to traffic cop, and we'll be voting for Apple for President.

    reply to this | link to this | view in chronology ]

    • identicon
      Michael, 11 Mar 2016 @ 10:48am

      Re:

      That may be the case, but at the end of the fight, the crooked official may still call the fight in favor of the DOJ.

      reply to this | link to this | view in chronology ]

    • identicon
      TripMN, 11 Mar 2016 @ 10:48am

      Re:

      Why not Apple for President?

      They are better business people than Trump.

      They've done some dirty deeds in the past, but not as much or as bad as Clinton.

      And a *free iPhone for everyone should make them more loved than the Bern.

      *at the tax-payers' expense, of course... they aren't idiots

      \s or is it...

      reply to this | link to this | view in chronology ]

    • icon
      sigalrm (profile), 11 Mar 2016 @ 10:58am

      Re:

      You're watching 3 (at minimum) distinct - but related - fights, and really, it's more akin to a chess match:

    • Court of public opinion - seems like apple may be winning here

    • Court of Law - Apple seems to have solid arguments, but the law is fungible. It'll be years before we know the outcome

    • Political fight on Capital Hill - the jury is still out on this. The public won't get a real sense of where this _really_ lies before November, at the earliest.


    • Each of these will turn, at least in part, on the others. For example, if the FBI wins the political fight and gets the legislation they want, the court battle will likely be moot. Whether or not they get that legislation is at least partially dependent on the results of the elections, etc.

      We've just seen the finish of the opening, and now we're seeing the beginning of the middle game.

reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 1:56pm

    Funniest part of this is the FBI doesn't have a no-compete clause with Apple, and has used the employee info they gained via this case to offer very cushy post-Apple jobs to various Apple Employees if they'll help them get what they want....

    reply to this | link to this | view in chronology ]

  • identicon
    Mark Wing, 11 Mar 2016 @ 3:09pm

    My prediction is that some of these government agencies will slip further and further into the dark ages, as all the smart techies coming out of college won't give a single thought to working for a three letter agency. Yeah, it must feel pretty good to work for the IT department in the FBI, or not!

    reply to this | link to this | view in chronology ]


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