The DoJ is currently trying to force Apple to decrypt data stored on a defendant's Iphone, and Apple, to its great credit, is fighting back, arguing that on the one hand, it doesn't have the technical capability to do so; and on the other, should not be required to do so.

A new filing from the DoJ attacks this second point in a novel and far-reaching way. The Justice Department lawyers argue that because Apple licenses its software — as opposed to selling it outright — that it is appropriate for the government to demand that Apple provide assistance in its legal cases.

To my knowledge, this is an entirely novel argument, but as I say, it has far-reaching consequences. Virtually every commercial software vendor licenses its products, rather than selling them. If the DoJ establishes the precedent that a product's continued ownership interest in a product after it is sold obliges the company to act as agents of the state, this could ripple out to cars and pacemakers, voting machines and tea-kettles, thermostats and CCTVs and door locks and every other device with embedded software.

IN RE ORDER REQUIRING APPLE INC. TO

ASSIST IN THE EXECUTION OF A SEARCH

WARRANT ISSUED BY THE COURT [PDF]





(via Nate Cardozo)