Apple’s legal team in a battle of perceptionMoments before Apple attorney Bruce Sewell stepped out to face hostile Congressional questioning last week, his own lawyer frowned.
“Have you got collar stays?” asked the attorney, Marc Zwillinger. When Sewell confessed no, Zwillinger flipped up his own shirt collar and handed over the stays.
As Sewell told Congress that complying with a government order to unlock a terrorist’s iPhone would “create a risk for everybody who owns an iPhone,” the collar points of his blue shirt were militarily correct.
In a dispute that Apple calls critical to personal liberty and its business, appearance is no small matter. In a dozen cases around the U.S., from the standoff over the phone in San Bernardino, California, to a similar clash in Brooklyn, the stiffening of the company’s anti-surveillance backbone can be traced to Zwillinger, a former government lawyer who is crafting Apple’s response, and Sewell, a veteran intellectual property attorney who was Steve Jobs’ legal enforcer.
The tech giant scored a victory last week when a Brooklyn judge agreed with Zwillinger’s argument that the government is overreaching in demanding access to encrypted iPhones.
“It’s like an end run around the legislative branch to seek this power in the courts,” Zwillinger said, adding that he expects the Brooklyn ruling to have “a significant effect on other cases.”
To press Apple’s side, Sewell, with a 500-strong in-house legal staff of his own, recently assembled a Dream Team that includes a former U.S. solicitor general and a heavyweight Los Angeles media lawyer.
Sewell is known for leading Jobs’s challenge of handset makers the Apple co-founder believed were copying the iPhone. But with little experience in national security, Sewell is counting on Zwillinger to help navigate a case with dramatic worldwide implications. While Apple has a growing group of lawyers who handle government data requests, most deal with licensing, supplier contracts and patent issues.
The two got to know each other during the Brooklyn case. The judge, facing a seemingly mundane request for government access to a drug dealer’s phone, in October asked why he should grant it. Now Sewell and Zwillinger talk, e-mail or text every day, and sometimes every hour.
The challenge for Apple is one of both perception and precedent. Even if U.S. Magistrate Judge Sheri Pym, due to hear arguments in the California case later this month, doesn’t side with Apple, simply waging the battle may help it burnish its reputation with customers as a champion of privacy.
It’s a strategy Sewell deployed not long after joining Apple from Intel. in 2009. Jobs dispatched him to Korea to tell executives at smartphone rival Samsung Electronics all the ways Apple believed its patents were being violated, according to a person familiar with the meeting. The Apple lawyer declined to comment for this story.
When Samsung didn’t change its practices, he advocated going to court, leading to a drawn-out legal fight that spanned several years and multiple countries. (Apple has had many victories in the battle, but not all. Just two weeks ago, it lost an appeals court ruling in one suit, freeing Samsung from paying it $119.6 million; Samsung is also asking the Supreme Court to reject another $399 million it was told to pay in a different case.)
That approach helps frame how Apple is handling the present dispute with the government. According to a colleague who worked on the Samsung lawsuit, Sewell was just as interested in the public relations benefit of a lawsuit portraying Samsung as a copyist as he was in actually prevailing in court.