The US government’s rebuttal this week of Apple’s arguments for why it should not be required to help the FBI unlock an iPhone belonging to a terror suspect in the San Bernardino shootings sets in motion the next phase of a legal battle that seems destined for the Supreme Court.
In a 35-page motion filed Thursday in the U.S. District Court for the Central District of California, lawyers for the federal government called on the court to compel Apple to comply with an earlier order requiring it to assist the FBI.
The crux of the government’s argument is that Apple, for purely marketing reasons, deliberately engineered its products to make them hard for the government to search even with a legitimate warrant. So Apple alone is the only one that can remove those barriers as well especially because of the extremely tight controls it exerts over the platform, the government said in its brief.
Contrary to Apple’s highly publicized claims, the government is not seeking any kind of a master key from Apple for unlocking encryption on all iPhones. Instead, all it wants from Apple, according to the motion, is “a narrow, targeted piece of software capable of running on just one iPhone, in the security of Apple’s corporate headquarters.
"Apple’s rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government."
The FBI wants Apple’s help in unlocking an iPhone 5C that was recovered from Syed Farook, one of two individuals killed in a police shootout shortly after they allegedly shot dead 14 people in a terror attack in San Bernardino last December.
The FBI states it believes that the phone contains information that could help in its investigation of the massacre. But the agency has been unable to get at the data so far, because it does not have the passcode for unlocking the device.
Like other iPhone 5Cs, the recovered device has a mechanism that can erase all data on it after 10 failed passcode attempts. It also has a feature that imposes a lengthening delay between password retries after every failed attempt. The FBI wants Apple to write code for overriding these mechanisms so it can try and brute-force the password. Apple has refused to comply, even after a magistrate judge ordered the company to do so last month.
Apple argued in a motion filed last month that what the government is seeking is no different from giving it a key to unlock all iPhones. The company has claimed that in order to comply with the government’s request Apple engineers would need to essentially write a new version of iOS capable of circumventing the existing protections. Anyone with access to the software would be able to break into any iPhone, the company has claimed.
Numerous technology companies, privacy groups and rights advocacy organizations have supported Apple’s position on the issue. They have said that what Apple is being asked to do is to enable a backdoor in its products that would give government and criminals alike a way into them. They have warned that if Apple were to accede to the government’s demand it would open the floodgates to similar requests from others.
The DOJ’s brief this week characterized those concerns as self-serving rhetoric by one of the world’s most influential and richest technology companies.
The All Writs Act upon which the government has based its case is neither as archaic nor underused as Apple has suggested, government lawyers wrote in their brief. Though the law was passed in 1789, it remains relevant even today and has been used previously to get technology companies to do exactly the sort of thing that Apple is being asked to do, they argued.
As one example, they pointed to a case more than 35 years ago where a technology company was ordered to write a program for capturing all incoming calls to a particular phone number. Though the company, like Apple, had protested the requirement as being burdensome and unreasonable, the Ninth Circuit Court of Appeals had upheld the order as being valid under the All Writs Act, the lawyers said.
They downplayed Apple’s suggestion that writing the code would be burdensome, pointing to the company’s over 100,000 employees and “hundreds of billions of dollars” in revenues. They also dismissed the company’s concerns of privacy intrusions and government-ordered backdoors as being needlessly alarming and insisted that what Apple is being asked to do is specific to one phone and nothing else.
“That is a diversion. Apple desperately wants—desperately needs—this case not to be about one isolated iPhone,” the government said in its brief.
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