Apple's CEO Tim Cook says he's willing to challenge a US court order to help the FBI access the San Bernardino shooter's iPhone all the way to the nation's highest court.
And now he's putting some legal muscle behind that commitment, hiring a fleet of renowned lawyers who have collectively argued dozens of cases before the Supreme Court.
Strikingly, the order for Apple to build new software that would help investigators bypass security measures on the iPhone 5C that belonged to Syed Rizwan Farook – who helped killed 14 people in December's Islamic State-inspired massacre – comes from a magistrate judge in Riverside, Calif. That's the lowest level court in the federal system.
Yet Apple's move to bring on this team of heavy-hitters "shows they've lawyered up for the long haul," said Kristen Eichensehr, an assistant law professor at the University of California, Los Angeles. “They’re quite possibly going to litigate this all the way up to the Supreme Court.”
Apple's new legal team includes former US solicitor general Theodore Olson and Theodore Boutrous, both partners from the Los Angeles-based firm Gibson, Dunn & Crutcher LLP. Their resume of past cases includes successfully opposing to California’s ban on same-sex marriage – an issue that helped pave the way for the Supreme Court to guarantee the right to same-sex marriage last June.
Marc Zwillinger, a Washington-based lawyer who runs the firm ZwillGen PLLC, known for fighting surveillance and defending encryption – including cases involving locked iPhones – rounds out the team.
Before Supreme Court justices could even consider granting a hearing, the case must first be tried in a US district court and the Ninth Circuit Court of Appeals. But Apple's motion to vacate the lower court's order, which the legal team filed on Thursday, is the next step in a potentially long legal battle.
“The government asks this court to command Apple to write software that will neutralize safety features that Apple has built into the iPhone in response to consumer privacy concerns,” says the motion written by Mr. Olson, Mr. Boutrous, and Mr. Zwillinger. “This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment.” The document argued that the government can't ask Apple to alter its code and digital signature without violating its Constitutional rights to free speech.
Arguing against cases that may threaten the First Amendment has been a specialty for Olson, who will lead Apple’s legal team in the case. He has argued 62 cases in front of the the Supreme Court over the course of his career – and won nearly 75 percent of his arguments.
That includes the controversial 2010 Citizens United case, in which Olson convinced the Supreme Court that the Constitution protected political spending – and that the government could impose limits on campaign expenditures by corporations and unions.
Olson also served as the leading Republican lawyer in Bush v. Gore, successfully arguing for the high court to stop the Florida recount in the 2000 Presidential election. The conservative lawyer was later tapped by President George W. Bush to become solicitor general, a role Olson held from 2001 to 2004.
“[Olson is] at the very top of the very elite group of attorneys who appear repeatedly before the Supreme Court,” said Jim Dempsey, Executive Director, Berkeley Center for Law & Technology. He has, Mr. Dempsey says, "huge credibility for never leading the justices down a wrong path.
Boutrous and Olson have worked together on high profile cases before. They successfully opposed California’s ban on same-sex marriage in 2013 – successfully making the case that Proposition 8, which limited the state's definition of marriage to unions between one man and one woman, violated the equal protection clause under the Constitution.
Boutrous also notably represented Walmart in a 2011 Supreme Court case that tossed a class action lawsuit brought against the company on behalf of 1.5 million female employees – arguing that the women could not sue as a single group without pointing out a specific corporate policy affecting all of them. That case helped establish more stringent federal standards governing class action cases.
For his part, Zwillinger – considered a pioneer in information security law – has spent years specializing in cybersecurity and privacy, beginning as a prosecutor.
He’s also worked with Apple before. Last year, he helped Apple fight a government petition in a federal court in Brooklyn to extract data from an iPhone under the same legal authority used in the San Bernardino case. The judge in that case has so far withheld a ruling.
More than anything, experts say, bringing together a diverse and experience legal team shows that Apple is ready to back up Cook’s pledge and fight the FBI to the end. “They’ve built a team that serves both the technology side and the appellate side,” said UCLA’s Ms. Eichensehr.
The lawyers will have assistance from the tech community in making their case against the government, too. Microsoft, Twitter, and Google have all announced that they will file amicus briefs supporting Apple’s position in the case to the court.