I’m a sucker for good legal writing, and Apple’s response to the FBI is really good (pdf).
We did learn one interesting thing from Apple’s brief:
The general consensus had been that Apple had input in the drafting of the Ex Parte Order in order to focus on the legal, Constitutional, and liberty issues instead of getting bogged down in the technical details of implementing the order. It now appears that was not the case. As Apple’s counsel describe it in Footnote 22:
22 The government obtained the Order without notice to Apple and without allowing Apple an opportunity to be heard. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (recognizing that one of the "'fundamental requisite[s] of due process of law is the opportunity to be heard'") (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). But this was not a case where the government needed to proceed in secret to safeguard its investigation; indeed, Apple understands that the government alerted reporters before filing its ex parte application, and then, immediately after it was signed and confirmed to be on the docket, distributed the application and Order to the public at about the same time it notified Apple. Moreover, this is the only case in counsel's memory in which an FBI Director has blogged in real-time about pending litigation, suggesting that the government does not believe the data on the phone will yield critical evidence about other suspects. (Citations omitted.)
Assuming this timeline is accurate, the FBI is being as cynically political as we thought.
(Sometimes we forget that the FBI was founded as a political operation, and that it is only in recent times that its actual law enforcement activities have taken precedence over undermining the political enemies of the Powers that Be. But I digress.)
