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The Law Is Clear: the FBI Cannot Make Apple Rewrite Its OS (backchannel.com) 367

Posted by msmash from the govt-vs-apple dept.
An anonymous reader cites a post by Susan Crawford, Harvard Law Professor and former Obama Special Assistant: From her column at Backchannel, "Barack Obama has a fine legal mind. But he may not have been using it when he talked about encryption last week. [...] The problem for the president is that when it comes to the specific battle going on right now between Apple and the FBI, the law is clear: twenty years ago, Congress passed a statute, the Communications Assistance for Law Enforcement Act (CALEA) that does not allow the government to tell manufacturers how to design or configure a phone or software used by that phone -- including security software used by that phone.
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The Law Is Clear: the FBI Cannot Make Apple Rewrite Its OS More

The Law Is Clear: the FBI Cannot Make Apple Rewrite Its OS

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  • Good to hear. (Score:5, Insightful)

    by jellomizer ( 103300 ) on Thursday March 17, 2016 @11:29AM (#51715245)

    The problem with this whole debate, is assuming making a system that is secure is beyond the means of mortal men. And will need a big organization to make such a system.

    The truth is. If Apple are shown to be insecure, the bad guys will not use apple, they may make their own OS, which doesn't have the back doors. It may not be a fancy but secure for what is needed.

    So Apple is loosing business, and the bad guys are still going under the radar.

    • Re:Good to hear. (Score:5, Insightful)

      by kheldan ( 1460303 ) on Thursday March 17, 2016 @11:40AM (#51715347) Journal

      the bad guys will not use apple, they may make their own OS, which doesn't have the back doors.

      This is true, or some version of it at any rate. Encryption isn't some Top Secret thing that only the government has. It's a mathematical fact, it's available to the general public in any number of different forms, and furthermore anyone with sufficient knowledge on the subject can write encryption software if need be. Screwing everyone else over on data security will not accomplish making anyone safer nor will it help catch criminals and foil terrorist plots. They'll just do an end-run around it. Or maybe they'll go back to using custom codebooks. Or any number of other long-standing methods of counter-surveillance. The entire premise that this is being demanded for 'national security' is so patina-thin, I can't believe anyone with an IQ even slightly above average would believe it anymore, given they've been following all this.

      The FBI is being lazy at best, disingenuos and power-grabbing at worst.

      President Obama is being improperly advised and/or technically ignorant at best, and being an enabler to the power-hungry and/or a power-grabber himself. Note that I voted for this man, twice! Wishing I'd not have done so now.

      Apple needs to stand it's ground, and cetain people in the FBI need to stand down -- or perhaps be asked to resign.

      • Re:Good to hear. (Score:4, Interesting)

        by MightyMartian ( 840721 ) on Thursday March 17, 2016 @11:48AM (#51715429) Journal

        There is a war on encryption right now, and frankly I don't think most politicians, and probably most of the senior folk at the FBI, even really know what it is. I'm sure in their view it's just some evil blackbox designed to keep them out, and all they need to do is bludgeon anyone implementing encryption systems with laws, the courts and a lot of bluster about how people like Apple are helping pedophiles, terrorists and organized crime.

        Somewhere in the bowels of the various intelligence and security services there are people who are perfectly well aware that encryption is simply a mathematical discipline, that trying to outlaw types of encryption is the equivalent of trying to outlaw nuclear fusion or prime numbers, but what they're hoping is that a "compromise" will be made giving them back doors.

        What worries me in the long run isn't the growing war between the technology giants and governments, but when they turn their attention to other projects like OpenSSL, OpenSSH, OpenVPN and other open source and freely available encryption systems. If the bad guys are as smart as they seem to assert (and there's no reason to think that at least some are), then they're just going to switch to roll your own solutions, use burner phones for any instant communication. Then are we going to see the project leads for these software packages being summoned to Congress or to Parliament, and basically accused of protecting bad people? Or will agencies like the FBI finally blink?

        • If the bad guys are as smart as they seem to assert (and there's no reason to think that at least some are), then they're just going to switch to roll your own solutions, use burner phones for any instant communication

          You did see where I said exactly that, right? Which is what I've said over and over and over again, which is what I sent to the Whitehouse itself, more than once (let 'em come and arrest me as a terrorist sympathizer, if they dare). I've more or less given up assuming politicians and other various people involved just don't understand what they're asking for, I'm really close to finally concluding that this is just power seeking more power. I just hope there are enough decent people in positions of power th

      • Re:Good to hear. (Score:4, Insightful)

        by tripleevenfall ( 1990004 ) on Thursday March 17, 2016 @11:54AM (#51715483)

        President Obama is being improperly advised and/or technically ignorant at best, and being an enabler to the power-hungry and/or a power-grabber himself. Note that I voted for this man, twice! Wishing I'd not have done so now.

        Apple needs to stand it's ground, and cetain people in the FBI need to stand down -- or perhaps be asked to resign.

        "Barack Obama has a fine legal mind" (TFA) has never been true, or if it has, he certainly doesn't care much about legal issues that may stand in the way of what he wants to do.

        For all the disappointments the Obama administration has brought, the most disappointing has been its lawlessness. Re-writing laws through the EPA, refusing to enforce others, using EOs as a fig leaf for outright lawbreaking, re-writing Obamacare on the fly as if there were no separation of powers at all...

        This may be the first time we've had an administration that both sides of the aisle can't wait to see go.

        • Re: (Score:3)

          by amiga3D ( 567632 )

          It's only going to get worse. I find this to be true with every subsequent administration. The last two clowns make me wish Slick Willie was back. All he wanted was some pussy occasionally. I didn't want President Obama and did not vote for him but when he won I kind of sighed and said, "Well at least he can't be any worse than the last fool." Wrong again.

          • Re:Good to hear. (Score:4, Interesting)

            by Jason Levine ( 196982 ) on Thursday March 17, 2016 @02:58PM (#51717099) Homepage

            It's only going to get worse. I find this to be true with every subsequent administration.

            Party A: The Party B administration goes too far when doing X!
            Party A (post-election): Our Party A administration is perfectly justified in doing X and Y!
            Party B: The Party A administration goes too far when doing X and Y!
            Party B (post-election): Our Party B administration is perfectly justified in doing X and Y and Z!
            {repeat ad infinitum}

        • Re:Good to hear. (Score:5, Insightful)

          by Anonymous Coward on Thursday March 17, 2016 @01:46PM (#51716495)

          For all the disappointments the Obama administration has brought, the most disappointing has been its lawlessness.

          Let's address this claim one point at a time.

          Re-writing laws through the EPA,

          The *laws* in question specifically delegate the creation of the regulations *to* the EPA. They are acting *fully* within the bounds of those laws when they create their regulations.

          refusing to enforce others,

          The Executive has *always* had discretion on how to allocate its resources for enforcement of the law. This is true at the federal, state, and local level, and always has been.

          using EOs as a fig leaf for outright lawbreaking,

          Executive Orders are legal. That is a long-established fact. They cannot change the law, nor have any of his EOs purported to do so. Additionally, he's used *fewer* EOs (per term) than any of his predecessors back as far as Grover Cleveland.

          re-writing Obamacare on the fly as if there were no separation of powers at all...

          There was no 're-writing' of Obama care. This is just a duplicate of the prior two, and equally empty. He has, as he is legally empowered to do, declined to enforce certain aspects of the law (pertaining to the timeline by which small businesses must comply with those certain aspects of the law), thereby preventing fines and penalties being levied on innocent actors simply because they were unable to adjust their business practices and software (at the mercy of third parties) to comply with a new law in the initial timeline. This is (again) a *COMMON* occurrence at the Federal, State, and local levels, because sane people don't want good actors penalized for things beyond their control, or for failing while acting in good faith.

      • President Obama is being improperly advised and/or technically ignorant at best, and being an enabler to the power-hungry and/or a power-grabber himself. Note that I voted for this man, twice! Wishing I'd not have done so now.

        I voted for him twice, too. And I, too was extremely disheartened to hear that he weighed-in on the side of the FBI.

        However, as far as Encryption goes, I would be very surprised if the President is any more informed than my dog, and is simply parroting the bullshit that is being fed him by the real criminals here: The "experts" in the FBI (you know, the same organization that didn't know not to reset the AppleID password) that are lying through their teeth, just to get an extremely dangerous precedent set

      • Re: (Score:2)

        by DarkOx ( 621550 )

        I can't believe anyone with an IQ even slightly above average would believe it anymore

        IQ isn't really the right measure. Its a question of education. The average user does not know the fist thing about encryption. Beyond Caesar ciphers they have never had it explained to them. That is why SSL and pki are explained in terms of friendly little lock icons and colored address bars.

        They don't understand the math, they don't know the difference between obfuscation and encryption. They don't get why if you give the FBI a backdoor someone else could also find it. They don't know the difference

      • Re:Good to hear. (Score:4, Insightful)

        by Bartles ( 1198017 ) on Thursday March 17, 2016 @02:05PM (#51716641)

        Well, for all the people that wanted more government for the last 50 years, this is what more government looks like.

    • Re: (Score:2, Insightful)

      by Viol8 ( 599362 )

      " If Apple are shown to be insecure,"

      Very little is secure to the author of the firmware who is also the designer of the hardware if that firmware and hardware can be usurped by said author.

      This argument is nothing to do with security or frankly , the "rights" of the public. This is a battle between on one hand a not altogether trustworthy government organisation that wants access to any data it desires and on the other a not altogether trustworthy global corp who is worried about the affect on its share pr

    • AND the government is basically saying that it is requiring that all systems (including the ones used by it) are not secure. This, in particular, is odd. I remember when the news was that Pres. Obama could not use his phone of choice shortly after he was elected because it was not sufficiently secure. I've hear similar comments on Maricopa County, which declared that it would no longer use iPhones due to Apple's refusal to downgrade the security on Farook's device. The inevitable conclusion is that Mari

      • Most Enterprise Management systems do not have that ability. Specifically with Apple devices, those security settings are such that the user is the defacto owner of the device. While it is possible to set these systems up so there is a back door way in, it requires a huge amount of IT involvement to do so, and IT resources are often very slim.

    • Re: (Score:2)

      by sjames ( 1099 )

      And then the good guys will suffer when the bad guys find a way to exploit the back door themselves, just like the last time the FBI was granted a mandated back door into telecoms equipment.

    • Re: (Score:2)

      by Kenja ( 541830 )
      They wouldn't need to stop using Apple products, they would just use encryption on top of it. Even if the iPhone is 100% unsecure, all that means is that there is nothing blocking access to the contents. The contents can still be encrypted, there are dozens of encrypted communication apps out there already.

    • So Apple is loosing business

      Losing business to whom?

  • Barack "Executive Order" Obama... (Score:2, Interesting)

    by Anonymous Coward

    ...can do what ever the hell he pleases. It isn't the first time he basically said screw the laws and precedents and tried to ram rod his way down everyone's throats.

    • Re:Barack "Executive Order" Obama... (Score:5, Insightful)

      by caladine ( 1290184 ) on Thursday March 17, 2016 @11:49AM (#51715433)
      I know how much you ACs love to hate on the president, but at least get your facts straight. The last time a president had as few executive orders per year (over the term of his presidency) as Obama was when Grover Cleveland was president. So if you're going to bitch and moan about Obama exercising his presidential authority, remember that presidents like Reagan did a lot more "ram rodding their way down everyone's throats" than Obama has (to the tune of 50% more).
      source: http://www.presidency.ucsb.edu... [ucsb.edu]

      • Well, except that it's his DOJ that is fighting this, so it's not just with his blessing, but with his direct orders to fight this fight.

      • I know how much you ACs love to hate on the president, but at least get your facts straight. The last time a president had as few executive orders per year (over the term of his presidency) as Obama was when Grover Cleveland was president.

        As the saying goes, it's not the quantity... it's the quality.

        I don't recall Grover Cleveland (or any other president) telling the Justice department not to defend [cbsnews.com] a law(*). Or making an executive order that in effect makes up a new law [usnews.com] (and contravenes existing law).

        How about his executive orders to kill an American citizen [wikipedia.org] without trial, or that citizens' teenage son (also an American citizen) two weeks later [wikipedia.org]?

        But you're right - Obama is way better than other recent presidents because he doesn't issue *as

    • Re:Barack "Executive Order" Obama... (Score:5, Informative)

      by OzPeter ( 195038 ) on Thursday March 17, 2016 @11:51AM (#51715449)

      ...can do what ever the hell he pleases. It isn't the first time he basically said screw the laws and precedents and tried to ram rod his way down everyone's throats.

      So is it Obama or EO's that you have a problem with? Because in recent history the high scores currently are [wikipedia.org]:

      Ronnie 381
      Bill 364
      George W 291
      Barack 224 (with 1 year to go)
      George H 166

      • Re:Barack "Executive Order" Obama... (Score:5, Funny)

        by serviscope_minor ( 664417 ) on Thursday March 17, 2016 @12:10PM (#51715593) Journal

        Please take your so-called facts elsewhere. They have no place on a politics thread.

      • Re:Barack "Executive Order" Obama... (Score:5, Insightful)

        by Zak3056 ( 69287 ) on Thursday March 17, 2016 @12:21PM (#51715693) Journal

        I'm not jumping into the middle of this fight (I'm not educated enough on the subject) but I will say that there is nothing inherently wrong with an executive order. Many laws that congress writes delegate various powers to the executive--this is why we have a Code of Federal Regulations to go along with US code (USC enables the executive branch to do something, and the CFR is the details of that something... at least in theory). An executive order is a reasonable way for the President (the head of the executive branch) to direct HOW the executive branch does something. The problem arises when executive orders purport to enable or forbid something the executive branch has no power to enable or forbid.

        Simply counting how many executive orders a president issues is meaningless in a vacuum. One has to actually ANALYZE those orders to determine if "screw the laws and precedents" is accurate with regard to a particular president.

        • Re: (Score:2)

          by OzPeter ( 195038 )

          Simply counting how many executive orders a president issues is meaningless in a vacuum. One has to actually ANALYZE those orders to determine if "screw the laws and precedents" is accurate with regard to a particular president.

          Yes I agree that context is important. Showing the number of EO's of the current president to be in same the ballpark as of all presidents in his era is also an element of context. Unless you want to take the position that a particular president is biased evil (or biased good), then all presidents will be making a mix of good and bad EO's (and that breakdown will also depend on the bias of the viewer given that EO's tend to be political in nature).

          So I would argue that the relative number of EO's is a val

          • In addition, I would posit that it is also impossible to classify EO's written in the current age into being good or bad

            I'd love to see you defend that position. This guy definitely classified EOs [slashdot.org]. Why would you say it's impossible to do what he did? What sort of information do you think we'll get in the future that will make it easier?

        • I'll just note that when the President wants to let civilians and troops go home early for a holiday (e.g. December 24th), that's an Executive Order too.

          Sure, there's probably lots of big and important EOs, such as those protecting information or troops... but there's lesser ones that give everyone 4 hours off too.

    • Yep. It's even in the comments of TFA is a way that they can - state of emergency orders. The ones from Jimmy Carter & Iranian hostages are still in effect, so this is definitely not out of the realm of possibilities.

    • From the Slashdot story: "Barack Obama has a fine legal mind. But he may not have been using it when he talked about encryption last week."

      Reality: Barack Obama often acts like a leader while saying or doing nonsense. One example: The ACA, "Affordable Care Act" gives money to the medical companies and takes it from citizens. Those who profit from people being sick got everything they wanted.

  • You don't understand, this is terrorism.../s (Score:3, Insightful)

    by Anonymous Coward on Thursday March 17, 2016 @11:29AM (#51715255)

    The USA is in perpetual war and illegal acts are justified by the wartime status, terrorism, the children, etc.

  • They'll just retract it (Score:4, Insightful)

    by wardrich86 ( 4092007 ) on Thursday March 17, 2016 @11:30AM (#51715257)
    Give them another week or to... they'll butcher the law, renege the whole thing. Make modifications so that they can do whatever the fuck they want... and there's nothing any of us can do about it. We pay them taxes, they use that money in return to fuck us over again.

  • These are good points, but (Score:5, Insightful)

    by number6x ( 626555 ) on Thursday March 17, 2016 @11:31AM (#51715265)

    When has this, or the previous, administration really cared about what the law says when the law disagrees with what the administration wants to accomplish?

    • Re:These are good points, but (Score:4, Insightful)

      by Brett Buck ( 811747 ) on Thursday March 17, 2016 @11:39AM (#51715337)

      And I am not sure what evidence anyone has for his "fine legal mind". As far as I can tell, he lies, threatens and bullies people to get his way, daring people to oppose him, then claiming all sorts of persecution. He has repeatedly referred to use of violence ("if they bring a knife, you bring a gun", "get in their face") . He has publicly lamented that there is a constitution that seems to limit his powers.

              The man is an *activist*, period, He says or does whatever he wants to get his way, legal or otherwise. And the vast majority of the press goes along with it, and doesn't call him on it, because they want the same thing.

            Make no mistake, in his mind, "the end justifies the means". In this case it's particularly disingenuous, because he doesn't care one whit about solving this case or stopping further terrorism by the usual suspects. He's using this case to bully a company into giving him unfettered surveillance for *everyone*, terrorist threat or not.

      • Re: (Score:3, Informative)

        by Anonymous Coward

        Well, Susan Crawford is a Harvard Law Professor, and former Obama Special Assistant, so she both knows the law, and Obama. I would count that as evidence in favour of the proposition. All this is right up there in the summary, by the way.

        Meanwhile you're some random dude on Slashdot with a clear and very specific ax to grind against Obama. So really you're only questioning this because you wanted to make a completely unrelated point. In fact Obama can both have a fine legal mind and be the "activist" yo

  • The government doesn't care about following the law when it comes to "national security." They'll ignore this law just like they've ignored all the other laws protecting our privacy. And even if they lose this court case, it's almost guaranteed that Congress will pass some "temporary" provision in a random, unrelated bill that makes what they are trying to do now "legal."

    --------
    I long to live in a country where I don't have to put those words in quotes.

    • The government doesn't care about following the law when it comes to "national security."

      Good to see that you don't believe that this is about national security. Now just to convince those who blindly follow Trump and Hillary.

    • I think it's pretty clear that some people in the government care about the law and others don't when it comes to national security. Tom Drake, one of the NSA leakers before Snowden, basically said as much. He said that lots of people inside the NSA had come to him with worries that they might not be following the law and possibly not doing the right thing. I think the same is true of other branches of the government, including Congress and I'm not sure which side will win.
  • Lawyers are hired to find holes that sound good. It's as much sales pitch as anything else. Lawmakers are there to convincingly sell an agenda. And if the law doesn't exist yet, they will find a way to politically sell a new one. 911 got used to shove a bunch a new policies like "The Patriot Act" (ironic isn't it) that undermined privacy unless cause can be show, that paved the way to where we are now when members of the FBI feel they can flippantly say "The constitution doesn't matter". But it's good to kn
  • A law professor who believes that the federal government is seriously constrained by the law. Given the ability of local police to get away with killing people at will, it's clear that this is not a good assumption...

  • When the government asks me "But what if terrorists kill you!!1!"

    Then I'll reply "at least I died on my feet instead of dying on my knees, which I probably would anyway because you have a shitty track record"

  • Yet the government did it anyway. I wouldn't put too much faith in laws when the government really wants to do something.
    • But can Apple break the laws of physics (or math)? A judge can order me to levitate but, at least for now, this is not possible due to the laws of physics.

  • Really Ms. Crawford? (Score:5, Insightful)

    by dfenstrate ( 202098 ) <dfenstrate&gmail,com> on Thursday March 17, 2016 @11:46AM (#51715405)

    "Barack Obama has a fine legal mind."
    To be blunt, this is unsubstantiated. For someone who has as many degrees and has held as many academic positions as Obama has, his scholarly writings are strangely absent.

    • his scholarly writings are strangely absent.

      Scholarly writings? Since when a scholarly writings required to compete an undergrad education degree and a JD (plain old law school)?

      The legal world is full of very fine legal minds that don't have any "scholarly writings" to their name.

      • He didn't say it was "questionable" (which would imply that there is evidence against it). He said it was "unsubstantiated", which mean that there is no evidence for it.

    • Re: (Score:2)

      by amiga3D ( 567632 )

      I'm curious as to the academic positions you speak of his holding.

  • Ninth Amendment (Score:5, Informative)

    by Tokolosh ( 1256448 ) on Thursday March 17, 2016 @11:59AM (#51715531)

    The default status is that the people have the right to do, or not to do, anything. The government has no rights, except as stated in the Constitution.

    Therefore, passing a law preventing the government from doing something is oxymoronic. The government cannot force Apple to do anything - no legislation required. Any attempt to compel Apple must pass constitutional muster.

    I get annoyed when the media reports something like "a law to legalize marijuana", or "a law to legalize abortion", or " a law to legalize gun ownership." The correct framing is "a law prohibiting...has been repealed/found unconstitutional."

    • Re: (Score:3)

      by amiga3D ( 567632 )

      That tired old document? No one pays any attention to that thing.

    • Your complaint is that the media does not use convoluted language? That's not something that someone that isn't stupid would say.

  • Is this even relevant when the DOJ is threatening to just seize the code and signing keys? At this point, Apple is no longer being required to write code.

    • Re: (Score:2)

      by JoelKatz ( 46478 )

      As Apple said in it is brief:

      "The government also implicitly threatens that if Apple does not acquiesce, the government will seek to compel Apple to turn over its source code and private
      electronic signature. ... The catastrophic security implications of that threat only highlight the government’s fundamental misunderstanding or reckless
      disregard of the technology at issue and the security risks implicated by its suggestion."

      • As Apple said in it is brief:

        "The government also implicitly threatens that if Apple does not acquiesce, the government will seek to compel Apple to turn over its source code and private
        electronic signature. ... The catastrophic security implications of that threat only highlight the government’s fundamental misunderstanding or reckless
        disregard of the technology at issue and the security risks implicated by its suggestion."

        Again I ask, is this 'settled law' that says Apple cannot be compelled to do what's requested relevant? Apple is stuck between a rock and a hard place, now. This revelation is pretty much useless. The alternative is what we need something against.. being compelled to turn over code and keys. Settled or not, Apple is being told, 'do what we want, or we'll make you give up your stuff so we can do it.'

    • Re: (Score:2)

      by chubs ( 2470996 )
      That's where the 5th amendment comes into play. FBI cannot sieze private property for public use without making just compensation. If they are willing to pay the hundreds of billions that iOS is thought to be worth by its investors, then 1) go ahead and 2) why, with so many other budget problems in the federal government, does the the FBI have hundreds of billions stashed away for something so trivial?
    • The FBI proposed that as an alternative. That would be actually worse than forcing Apple to write code. That would give the FBI the ability to impersonate Apple at will. Any new update from Apple might be FBI snooping software.

  • I love it! CALEA...the law that basically mandates that Carnivore be built-in to our telecommunications infrastructure, and which has probably made the warrantless wiretapping/metadata collection by the NSA far more technically simple to accomplish, is what ends up backfiring on the FBI. Priceless.

    • I love it! CALEA...the law that basically mandates that Carnivore be built-in to our telecommunications infrastructure, and which has probably made the warrantless wiretapping/metadata collection by the NSA far more technically simple to accomplish, is what ends up backfiring on the FBI. Priceless.

      Exactly. The irony is unending with this one. Who would have ever thought it would have been this that would have stopped them.

  • Changing the value of two variables, to something greater than 10,000 is not a rewrite.

  • The article quotes the following

    But in exchange, in Section 1002 of that act, the Feds gave up authority to “require any specific design of equipment, facilities, services, features or system configurations” from any phone manufacturer.

    It misses the preceding clause;

    This subchapter does not authorize any law enforcement agency or officer

    Notice that it "does not authorize" rather than "prohibits" and it only applies to law enforcement agencies or officers. There is nothing in it that prohibits another agency like the the Office of the President, as it is not a law enforcement agency from requiring it.

    Also, the term "specific design" is questionable. A specific design would be something like "must use SHA2". It could easily be argued that "access to encrypted data" is not a "spe

  • Rewrite? (Score:2, Insightful)

    by g01d4 ( 888748 )
    How is changing the maximum number of logins considered "rewriting" an operating system? If a parameter's hard wired it shouldn't magically become different in relation to the operating system's functionality than parameters that aren't. In other words, if I change the Windows account lockout threshold I don't consider it as rewriting Windows.

    • Because if you haven't been following the case, the phone attempt settings can't be changed without the user's passcode. The FBI doesn't have the passcode. What they want to do is trick the phone into accepting iOS FBI edition as a new iOS update where the phone settings are bypassed. In your example, as an admin or root, you can change the setting because you have permission to do so. The phone is not on a MDM so Farook was the administrator.

      Specifically the FBI is asking 3 things:

      1. Disable the Erase Data

  • Apple is ahead of the legal curve here (Score:4, Informative)

    by sigmabody ( 1099541 ) on Thursday March 17, 2016 @02:34PM (#51716901)

    I'm sure this won't get much visibility, but for what it's worth...

    Apple has smart lawyers, which made it odd for me to read when they were basing their primary objection on first amendment grounds, rather than the more obvious undue burden defense (and/or reference to this law, and the lack of statute which would compel them to rewrite the OS). But more recently, the government made their real strategy more clear (ie: rewrite it, or give us the code), which made Apple's strategy make more sense. Although the government cannot necessarily compel Apple to rewrite the OS code, they have much better legal footing to compel Apple to give them the OS code, and presumably could write GovOS themselves fairly trivially.

    That's where the freedom of speech argument comes in: although the government can, in effect, steal Apple's code (legally), it's much more clearly established that they cannot compel Apple to "say" that it's coming from Apple (in technical terms, sign the code). Without the code signature, GovOS cannot be pushed onto, or run on, iOS devices. In essence, Apple was countering the more legally persuasive argument that the DOJ was holding back as their would-be trump card, if Apple fought the initial ruling. Well played, indeed.

    For the sake of everyone in the US (and not to mention all the principles the country is founded on), I sincerely hope Apple prevails. Their forethought in legal argument gives me some hope that all is not lost, privacy-wise.

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