Apple officially rejects FBI request
Asks court to dismiss order to break into terrorist’s iPhone.
With Apple filing a motion Thursday to dismiss the government’s request for help accessing a killer’s iPhone, consider the battle officially joined.
In one corner, U.S. law enforce- ment officials argue that public safety hangs in the balance if they cannot command tech companies to help with its investigations. In the other, there’s Tim Cook and a global brand that prides itself on products that are both beautiful and secure.
Who will win? And when? Given the far-reaching ramifications of the outcome, legal experts anticipate lots of wrangling with neither party holding an edge.
“Apple says this is a matter of the Constitution, and the FBI says it is of national security,” says Larry Downes, a project di- rector at Georgetown Business School. “There are millions of possible courses this can take. This (case) is in the earliest possible stage, and these types of things go back and forth, among courts, for months, if not years.”
The government’s task will be to make a public case against a company with legendary marketing prowess and a powerful public fan base, Downes said.
Apple’s dilemma is trying to do battle on the legal turf of the federal government in Washington, D.C., where Apple has low visibili
ty and influence compared to its Bay Area base. Plus, it’s making an anti-law enforcement case in an era of terrorist alerts and random shootings.
The Cupertino, Calif., company’s Thursday motion rejecting an order that it create new software to allow the FBI to break into the iPhone 5c belonging to one of the assailants in the San Bernardino massacre was anticipated — and supported by the tech industry at large.
Google and Facebook will be among those filing a joint amicus
brief in support of Apple’s position, according to two people familiar with the plans but who weren’t authorized to speak publicly on the matter. Twitter said it will join that brief.
Microsoft said it will also file a brief, though its officials would not comment on whether it would be part of the group.
Apple said that assisting the government to crack into the phones is “in conflict with the First and Fifth Amendments of the United States Constitution,” referring to free speech and the right to avoid self-incrimination.
Also, complying with the government order would force it to create “a new ‘Govt OS’ ” — in other words, an operating system that has a route around its current operating system’s encryption — as well as an FBI forensics lab on site, Apple said in a statement to reporters.
Justice Department spokeswoman Melanie Newman said Thursday that its attorneys “are reviewing Apple’s filing and will respond appropriately in court.”
As Apple filed its response in a California federal court, FBI Director James Comey told a House panel that he did not “fully understand’’ Apple’s opposition in the San Bernardino case.
“This is a single phone in a very important investigation,’’ Comey said, adding the request was narrowly tailored and didn’t threaten the privacy of other Apple customers. “I’m a big fan of privacy; I love encryption. … But if we get to a place in American life where certain things are immune from a judge’s order, then we are in a very different world.’’
Comey said federal investigators were obligated to pursue every lead in the San Bernardino case to determine if others, perhaps unknown to authorities, may have been involved and to account for every moment of the terrorist’s activities before and after the December attack. Authorities still have been unable to fully account for 19 minutes of the terrorists’ movements following the deadly mass shooting and before they were killed in a shootout with law enforcement. “We ought to be fired in the FBI if we didn’t pursue that lead,’’ he said.
Several lawmakers encouraged Comey to continue his pursuit of Apple’s cooperation, including Rep. David Jolly, R-Fla., who thanked the FBI director during his appearance before the House Appropriations Committee.
Apple’s motion to vacate boils down to three arguments, according to Apple. The first hinges on the fact “no court has ever granted the government power to force companies like Apple to weaken its security systems,” which also would have the added financial impact of potentially harming the firm’s reputation with consumers.
“The government wants Apple to build in flaws with a back door,” says Harvey Anderson, chief legal officer at computer-security company AVG Technologies. “It’s like asking an automaker to design a less-safe car. This undercuts Apple’s relationship with its customers.”
Anderson adds that while the government ultimately “may win this (case), the tech industry will work even harder to build stronger products that are not vulnerable to back doors.”
According to reports, Apple is in fact working on new encryp- tion technology that would make it impossible for anyone — including its own engineers — to access data in a mobile device.
The second point amounts to a rejection of the All Writs Act, which in the past has allowed the government to get assistance in accessing technological devices used in criminal activities. Apple’s statement notes that “the question whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one.”
Apple CEO Tim Cook has said the issue at large should be taken up by Congress.
“Code itself is considered speech,” says Mark Bartholomew, a professor of cyberlaw and privacy law at the University of Buffalo. “But the line between speech and conduct is fuzzy under First Amendment law. Apple’s stronger strategy is that the government’s request is unwarranted under the All Writs Act.” The last point contends simply that “the government’s demands violates Apple’s constitutional rights.”
“Apple’s leadership risks having blood on their hands.” Rep. David Jolly, R-Fla.