Apple Defense Pairs Cyberpioneer With Architect of Samsung Brawl

March 4, 2016, 5:24 PM

By Peter Robison,Adam Satariano,Monte Reel, Bloomberg News

Moments before Apple Inc. attorney Bruce Sewell stepped out to face hostile Congressional questioning this 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 own profits, 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’s crafting Apple’s response, and Sewell, a veteran intellectual property attorney who was Steve Jobs’ legal enforcer.

Brooklyn Victory

The tech giant scored a victory this week when a Brooklyn judge agreed with Zwillinger’s argument that the government is overreaching in demanding access to encrypted iPhones. Apple rivals from Microsoft Corp. to Yahoo! Inc. also rallied to its defense, filing briefs yesterday with the court in California that said a request for special software to unlock the phone would undermine public trust.

“It’s like an end run around the legislative branch to seek this power in the courts,” Zwillinger said in an interview, 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 of its attorneys deal with such issues as licensing, supplier contracts and patents.

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.

Training Agents

As a prosecutor in the Justice Department’s fledgling computer crimes division in the late 1990s, Zwillinger trained FBI agents how to legally obtain the sort of digital information he now works to safeguard for clients. He left to start one of the first cyber-security practices at a national firm and became the only private lawyer known to have contested a government order in the Foreign Intelligence Surveillance Court of Review, one of the secret courts that weighed the government’s post-Sept. 11 snooping.

In a hearing in June 2008, Zwillinger argued on behalf of Yahoo that the government’s electronic monitoring was violating the constitutional rights of e-mail users. He’d flown to the session in the company of plainclothes Justice Department security agents who double-wrapped the classified court papers in locked bags. The hearing, supposed to remain secret for 25 years, only became public in 2014 after Zwillinger filed a motion to reveal Yahoo’s identity.

It had bothered him “terribly” that many of his clients were portrayed as government lackeys in the months after Edward Snowden’s leaks revealed the mass surveillance program, Zwillinger said. “I knew how much tech companies had pushed back and what care they took with user data,” he said.

Zwillinger, 46, is a tech junkie himself. Growing up in Scarsdale, New York, he stored programs he wrote for his TRS-80 on cassette tapes and celebrated his bar mitzvah with a cake shaped like a computer. His parents both worked on Wall Street, where his mother , a former senior partner at Gruntal & Co., at one time ranked as the industry’s highest-ranking woman.

“He combines great legal knowledge with a strong technical background and can present issues clearly to a court,” said Orin Kerr, a George Washington University law professor who worked with Zwillinger in the government’s computer crimes division. “It’s a rare combination of skills.”

Reputation Management

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 Corp. in 2009. Jobs dispatched him to South Korea to tell executives at smartphone rival Samsung Electronics Co. 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. (Just last week, Apple lost an appeals court ruling in one suit, freeing Samsung from paying it $119.6 million; Samsung is 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.

Sewell grew up in the U.K., where his father worked for Boeing Co. After college at the University of Lancaster, he became a firefighter in Maryland and then went to law school at George Washington University. At Intel, he became close with Apple’s now-CEO Tim Cook when the two negotiated a deal to have Intel chips put inside Mac computers. A few years later, when Jobs was looking for a new general counsel, Cook recommended Sewell. Jobs had gone through about three top attorneys in as many years, but Sewell gained his trust.

“I’ve never seen a room where there’s a lot of energy and emotion where Bruce isn’t the calm at the center of the storm,” said Mark Chandler, the general counsel at Cisco Systems Inc., who has known Sewell for 15 years.

Winning the privacy fight isn’t guaranteed, because of the limited reach of the Brooklyn ruling. “It’s important to note from a legal standpoint there is absolutely no precedent,” said Larry Downes, project director at the Georgetown University Center for Business and Public Policy. “Magistrate judges’ rulings have no precedential value.”

That’s also true of the coming ruling in California. It’s expected to be appealed, ultimately to the U.S. Supreme Court, said Albert Gidari, a retired lawyer who recommended Zwillinger for the first case he handled for Apple, a 2011 class-action suit over iPhone location tracking that was later dismissed.

In partnering with Zwillinger, people who know him say, Sewell has a lawyer who’s already shown he’ll take on the government -- and not miss a detail.

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