Apple claims it has a free speech right not to cooperate with the government’s warrant to open the phone, tell what is inside. Free speech in inapplicable. No one is preventing Apple from saying anything, however stupid.

Also, Apple must establish that it cannot open the phone and do much extra work. Next Apple must state that it has not cooperated with every other government and institution on Earth and blocked access to the data on its phones. Moreover, Apple must demonstrate that persons writing applications and compatible programs within Apple’s eco-system do not have an abilities to unlock part or all of Apple’s code.

Apple has submitted no evidence to answer the inquiries in the previous paragraph. To sell in China, do Americans believe Apple did not cut a deal with the Chinese government, one of the most intrusive governments on the face of the planet? (Oh yeah, every Chinese citizen has a right to privacy especially if he owns an iPhone.) If an Islamic Extremist is using an iPhone in Syria, does anyone in the United States of America believe a court, resulting from Apple’s brief today, will prevent the United States government from listening in? (Image a guy in the Syrian desert being observed by an American drone. He holds up his iPhone and yells, “I have my privacy rights!”) I observe McAfee last week offered to unlock Apple’s phone, on his own. It would take three weeks for one person.

Apple’s brief (355 pages) is a data dump. What the California Supreme Court said about long briefs in King versus Gildersleeve, 1889, is applicable to Apple’s submission today:

We are inclined to doubt the correctness of the [brief], on account of
the extreme length of the brief of the learned counsel…Knowing the
abilities of counsel and their accurate knowledge of the law, a brief
of eighty-five pages coming from them …casts great doubt upon [their
argument]. However, the learned counsel may not have had time to
prepare a short brief, and for that reason have cast upon us the
unnecessary labor of reading the extracting therefrom the points made…
(79 Cal. 503, 507-508)

Apple has presented no evidence to support its position. Its brief in opposition to the warrant argues the law. Evidence – facts are the salient elements a court can make a determination about – are absent. Every attorney knows and every juror learns the legal maxim, Argument is not evidence. Argument produces no facts. This point is continually glossed over by journalists, and Apple.

From press reports, albeit the product of journalists, it sounds like Apple has failed logically to construct a right on which to support its non-compliance with the warrant. In order for Apple to succeed, Apple needs constitutional lawyer, who knows how to construct a freedom. The answer is not to be found in the caselaw.


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