The latest filing in the legal war between the planet’s most powerful government and its most valuable company gave one indication of how the high-stakes confrontationcouldescalateeven further.
In what observers of the case called a carefully calibrated threat, the U.S. Justice Department last week suggested that it would be willing todemandthatAppleturn over the "source code" that underlies its products as well as the so-called "signing key" that validates software as coming fromApple.
Together, those two things would give the government the power to develop its own spying software and trick anyiPhoneinto installing it. Eventually, anyone using anAppledevice would be unable to tell whether they were using the real thing or a version that had been altered by officials to be used as a spy tool.
Technology and security experts said that if the U.S. government was able to obtainApple's source code with a conventional court order, other governments woulddemandequal rights to do the same thing.
"We think that would be pretty terrible," said Joseph Lorenzo Hall, chief technologist at the nonprofit Center for Democracy & Technology.
The battle betweenAppleand the U.S Justice Department has been raging since the government in February obtained a court orderdemanding thatApplewrite new software to help law enforcement officials unlock an iPhone associated with one of the shooters in the December attack in San Bernardino, California that killed 14 people.
Appleisfighting the order, arguing that complying with the request would weaken the security of all iPhones and create an open-ended precedent for judges to makedemands of private companies.
The Justice Department's comments about source code and signing keys came in a footnote to a filing last week in which it rejectedApple's arguments.Apple's response to the DOJ brief is expected on Tuesday.
Justice Department lawyers said in the brief that they had refrained from pursuing theiOSsource code and signing key because they thought “such a request would be less palatable toApple. IfApplewould prefer that course, however, that may provide an alternative that requires less labor byApple.”
The footnote evoked what some lawyers familiar with the case call a "nuclear option," seeking the power todemandand use the most prized assets of lucrative technology companies.
A person close to the government’s side told Reuters that the Justice Department does not intend to press the argument that itcouldseize the company’s code, and someone onApple’s side said the company isn’t worried enough to counter the veiled threat in its brief due Tuesday.
But many people expect theiPhonematter to reach the U.S. Supreme Court, and thus even fallback legal strategies are drawing close scrutiny.
ODDS OF SUCCESS UNCLEAR
There is little clarity on whether a governmentdemandfor source code would succeed.
Perhaps the closest parallel was in a case filed by federal prosecutors againstLavabitLLC, a privacy-oriented email service used by Edward Snowden. In trying to recover Snowden’s unencrypted mail from the company, which did not keep Snowden’s cryptographic key, the Justice Department got a court order forcing the company to turn over another key instead, one that would allow officials to impersonate the company’s website and intercept all interactions with its users.
“Lavabitmust provide any and all information necessary to decrypt the content, including, but not limited to public and private keys and algorithms,” the lower court ruled.
Lavabitshut down rather than comply. But company lawyer JesseBinnallsaid the Fourth Circuit Court of Appeals, which upheld the lower ruling, didso onprocedural grounds, so that the Justice Department’s win would not influence much elsewhere.
In any case, full source code would be even more valuable than the traffic key in theLavabitcase, and the industry would go to extreme lengths tofightfor it,Binnallsaid.
“Thatreallyis thekeysto thekingdom,” Binnall said.
Source code is sometimesinspected during lawsuits over intellectual property, and the Justice Department noted thatApplewon permission to review some of rival Samsung's <005930.KS> code in one such case. In that case and similar battles, the code is produced with strict rules to prevent copying.
No cases brought by the government have led to that sort of code production, or at least none that have come to light.
But intelligence agencies operate under different rules and have wide latitude overseas. Some advanced espionage programs attributed to the United States used digital certificates that were stolen from Taiwanese companies, though not full programs.
U.S. software code may have been sought in other cases,such as investigations relying on the Patriot Act or theForeign Intelligence Surveillance Act (FISA), which applies within American borders.
Several people who have argued before the special FISA court or are familiar with some of its cases say they know of no time that the government has sought source code.