Apple vs. the FBI: The Justice Department Fires Back

The Justice Department has filed a motion to force Apple to comply with a judge’s order to help the FBI unlock an iPhone that belonged to one of the San Bernardino attackers.  

Luca Bruno / AP

The Justice Department has filed a motion to force Apple to comply with a judge’s order to help the FBI unlock an iPhone that belonged to one of the San Bernardino attackers.

The motion comes just days after Tim Cook, the Apple CEO, in a letter to customers, described the government’s request as overreach, and called its effect “chilling.” In essence, Cook said: The “U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.”

The Justice Department, in its motion filed Friday before the U.S. District Court for the Central District of California, accused Apple of “repudiating” the order of Magistrate Judge Sheri Pym.

“Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which has been found by this Court to be warranted for an important investigation,” the department said in its filing. “Despite its efforts, Apple nonetheless retains the technical ability to comply with the Order, and so should be required to obey it.”

And it dismissed the idea the FBI had asked for a “backdoor” entry that could grant the bureau access too all iPhones.

The Order requires Apple to assist the FBI with respect to this single iPhone used by Farook by providing the FBI with the opportunity to determine the passcode. The Order does not, as Apple’s public statement alleges, require Apple to create or provide a “back door” to every iPhone; it does not provide “hackers and criminals” access to iPhones; it does not require Apple to “hack [its] own users” or to its own phones; it does not give the government “the power to reach into anyone’s device” without a warrant or court authorization; and it does not compromise the security of personal information. To the contrary, the Order allows Apple and it gives Apple flexibility in the manner in which it provides assistance. In fact, the software never has to come into the government?s custody.

The phone in question is the iPhone 5c that belonged to Syed Rizwan Farook, who with his wife, Tashfeen Malik, opened fire at a civic-services center in San Bernardino,  California, killing 14 people and wounded 21 others. The attack was believed to be inspired by ISIS, though no direct link has been found between the attackers and the Sunni terrorist group.

Cook, in his letter, said the FBI—rather than seeking congressional legislation—was seeking a new interpretation of the All Writs Act of 1789, which allows judges to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Justice Department rejected the idea that use of the All Writs Act to facilitate a warrant is unprecedented, noting Apple itself had previously complied with “a significant number of orders” related to the act to “facilitate the execution of search warrants on Apple devices running earlier versions of iOS.”

And, the department says, Apple’s refusal to help unlock the phone “appears to be based on its concern for its business model and public brand marketing strategy.”

Apple’s lawyers are expected to file the company’s formal response to Pym’s order by next Friday.