Apple says U.S. can’t force it to unlock iPhone
Tim Cook has called it nothing less than a threat to civil liberties, the digital privacy of millions and even children’s safety.
Now, six days after the federal investigators threw down a gauntlet to Silicon Valley, Cook’s lawyers have weighed in, offering cool-headed legal arguments against having Apple Inc. unlock the iPhone used by one of the attackers who killed 14 people in San Bernardino, California, in December.
Apple’s response, which it said it filed Thursday, is the company’s first formal step in a case that seems destined to reach the U.S. Supreme Court. The filing lays out a simple legal argument: that compelling Apple to write new software to break open the smartphone would represent an “undue burden” for the company to help the FBI get inside the phone used by Syed Rizwan Farook, who with his wife killed 14 people on Dec. 2.
The government demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents and unwarranted government surveillance, according to the filing.
Apple’s response to the Feb. 16 order to help the investigators also said the U.S. doesn’t have the authority to force the company to help the FBI. The magistrate’s decision that it must provide “reasonable technical assistance” was premised on an unprecedented expansion of the All Writs Act, a 1789 law that compels third parties to take “non-burdensome” steps to help law enforcement carry out search warrants in circumstances not covered by other statutes, Apple has argued.
The All Writs Act has never been used — and should not be used — to force a company to produce software code that could be used as a “master key” to bypass a mobile phone’s security features, Apple said in the court filing. A hearing is scheduled for March 22 in Riverside, California.
The filing comes after the Apple chief executive publicly blasted the U.S. demand as being “bad for America” in a nationally televised interview with ABC on Wednesday. And in fiercely worded posts, Cook accused the government of threatening civil liberties, of looking for an end-run around encryption that could expose Americans to privacy breaches, of a “chilling” and undemocratic overreach.
The standoff, over whether the U.S. can require Apple to write code that would override a key security feature of the iOS operating system, is on one level just about what law enforcement can demand of one company in its investigation into the motives of Syed Rizwan Farook, who with his wife attacked a holiday party. The couple died in a shoot-out with police.
But the larger battle pits the public interest in privacy against its interest in protection from terrorists and other criminals, and highlights how advances in consumer technology, including encryption of personal data, may have eclipsed U.S. laws. The morning after Cook warned on ABC’s World News that the debate should be before Congress rather than in the courts, FBI Director James Comey told the House Intelligence Committee that the question will ultimately be up to the Supreme Court as neither side is likely to back down.
“Whatever the judge’s decision is in California, it will be appealed and it will be instructive for other courts,” Comey testified Thursday. “There may well be other cases that involve the same kind of phone and same kind of operating system.”
Cook and Apple have garnered broad support from the tech industry. The CEO has argued there’s no guarantee that the master key would be used only once in this unique case, as the government contends, and has said creating the technology for a backdoor into the iPhone’s data could end up exposing all Americans to cyber-criminals and hackers.
Apple objects to the government’s contention that isn’t a “unreasonable burden” under the law for a company in the business of writing software to create a modified operation system to unlock Farook’s iPhone. It would actually require more burdensome and involved engineering than Apple has done in the past to help the government unlock iPhones running older operating software, the company said.
Microsoft Corp. will file an amicus brief in support of Apple next week, President and Chief Legal Officer Brad Smith said Thursday. Victims and families of those killed in the San Bernardino attack will as well, their lawyer said, as will the American Civil Liberties Union.
Until recently, Apple routinely helped law enforcement to unlock iPhones operating on an older iOS version. The cooperation ceased last year after a magistrate judge in Brooklyn, New York, questioned whether the All Writs Act applied to the government’s request for help in unlocking a drug dealer’s phone. The judge said it appeared that Congress had deliberately left prosecutors without the power they sought in that case.