Next Monday, Apple will once take command of the tech news cycle when it introduces a range of new hardware, including a brand new 4-inch iPhone SE and a new 9.7-inch iPad Pro. Just one day later, Apple will once again be in the news, albeit for a completely different reason.

This coming Tuesday, Apple will square off against the FBI in court in Washington D.C. While the upcoming court date has been on the docket for some time, what makes it particularly interesting is that the FBI a few days ago filed a last-minute request to have an evidentiary hearing.

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What does this mean?

Well, it means that each side will be able to call expert witnesses from the opposing side and ask questions. This is significant because it may signal that the FBI isn’t entirely confident in its legal position. As the old legal adage goes, “If you don’t have the law on your side, argue the facts.” Indeed, given that the current debate over encryption was spurred by a terrorist’s locked iPhone, one could argue that the sympathetic facts of this case are all that the FBI has going for it.

Just this past week, for instance, Harvard law professor Susan Crawford explained why the FBI’s case rests on “shaky legal ground.”

Returning to the FBI’s request, Martyn Williams of ComputerWorld explains that Apple was caught off-guard by the request.

Speaking on Friday with reporters, lawyers for Apple said the FBI’s request was a surprise, and they don’t understand why the government wants to present witnesses to the court.

If lawyers believe they have a strong legal case, they typically want to argue it without bothering with witnesses in these types of hearings, so the request may indicate that the FBI isn’t as comfortable as it was in relying solely on legal arguments, an Apple lawyer said.

As for who will be appearing on Apple’s behalf, one witness will be Lisa Olle, Apple’s Global Law Enforcement Manager, and Erik Neuenschwander, the company’s top cryptography expert.

On a related note, Neunschwander’s previously filed declaration with the court touches on a number of issues, including the work that would be involved in having Apple engineers create what they call GovtOS.

It reads in part:

Thus, as noted in my initial declaration, the initial creation of GovtOS itself creates serious ongoing burdens and risks. This includes the risk that if the ability to install GovtOS got into the wrong hands, it would open a significant new avenue of attack, undermining the security protections that Apple has
spent years developing to protect its customers.

There would also be a burden on the Apple employees responsible for designing and implementing GovtOS. Those employees, if identified, could themselves become targets of retaliation, coercion, or similar threats by bad actors seeking to obtain and use GovtOS for nefarious purposes. I understand that such risks are why intelligence agencies often classify the names and employment of individuals with access to highly sensitive data and information, like GovtOS. The government’s dismissive view of the burdens on Apple and its employees seems to ignore these and other practical implications of creating GovtOS.

We’ll make sure to keep you posted as to any significant developments that arise from next Tuesday’s court hearing.

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