“The court must consider the national debate surrounding the issue of mandating a backdoor or the dangers to the security and privacy of millions of citizens,” Apple argued in its motion. “Indeed, the Justice Department and FBI are asking this court to adopt their position even though numerous current and former national security and intelligence officials flatly disagree with them.”
Attorneys for Apple also maintained in their motion that the government has misinterpreted an 18th-century edict used to obtain the Feb. 16 order by U.S. Magistrate Judge Sheri Pym compelling Apple to design software that would allow FBI agents to hack an iPhone 5C used by Syed Rizwan Farook, the gunman in the Dec. 2 San Bernardino attack.
The All Writs Act, a federal statute that allows the courts to compel third parties to provide technical assistance to law enforcement, “cannot be stretched to fit” the San Bernardino case because it would exceed the scope of how the law can be applied, attorneys for Apple argue in their motion.
It was the All Writs Act that enabled the Justice Department to secure its search warrant compelling Apple to build the special software for the FBI that would enable investigators to bypass the phone’s encrypted passcode in order to access its data.
“The government attempts to rewrite history by portraying the (All Writs) Act as an all-powerful magic wand rather than the limited procedural tool it is,” according to Apple’s response. “According to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up.”
Apple maintains that the technology it has been tasked by the government to design equates to a “backdoor” that would degrade its product security features and expose hundreds of millions of customers to potential data breaches by hackers.
“The government seeks to commandeer Apple to design, create, test and validate a new operating system that does not exist, and that Apple believes — with overwhelming support from the technology community and security experts — is too dangerous to create,” according to Apple’s motion.
Facebook, Google and Microsoft, as well as digital privacy and civil rights organizations including the American Civil Liberties Union, have come forward supporting Apple. The Rev. Jesse Jackson also sent a letter to the court in support of Apple.
The company’s attorneys also state in the motion that the government has failed to point out any case law that specifically required a private non-party to perform “burdensome forensics work, create new software, or compel speech to assist law enforcement.”
There is no precedent for forcing Apple to “create new software that degrades its security features,” according to Apple’s motion, which states that the cases cited by the government are substantially different.
The iPhone in question was issued to Farook by the San Bernardino County Department of Public Health, where Farook had worked as an environmental health specialist prior to the Dec. 2 attack at the Inland Regional Center, where Farook and his wife, Tashfeen Malik, killed 14 people and wounded 22 others in a mass shooting.
The Redlands couple, who the FBI said were radicalized Muslims who had been planning a mass casualty attack, were killed in a shootout with police hours after the attack.
In its motion filed March 10, the Justice Department maintained its request was “a narrow, targeted order that will produce a narrow, targeted piece of software capable of running on just one iPhone, in the security of Apple’s corporate headquarters.”
But all the evidence points to the contrary, Apple argued in its response Tuesday.
“It has become crystal clear that this case is not about a ‘modest’ order and a ‘single iPhone,’ as the FBI director himself admitted when testifying before Congress two weeks ago,” attorneys for Apple said in their response. “This case hinges on a contentious policy issue about how society should weigh what law enforcement officials want against the widespread repercussions and serious risks their demands would create.”
There is only speculation that the government needs any information from Farook’s phone, the motion states, citing San Bernardino Police Chief Jarrod Burguan, who was quoted saying “I’ll be honest with you, I think that there is a reasonably good chance that there is nothing of any value on the phone.”
Federal prosecutors, however, strongly suggest in court filings that there is evidence on the phone that will show Farook had been communicating with victims of the attack and planning a terrorist plot.
Apple also takes issue with the government portraying its passcode-based encryption as a marketing tool.
“This is a reckless and unfounded allegation,” the motion states.
Apple’s senior director of advertising, Robert Ferrini, said in a declaration included with Tuesday’s motion that since Apple introduced the encryption in 2014, it has produced 627 ads in the United States and 1,793 ads worldwide, none of which advertised the ability of Apple’s software to block law enforcement requests for access to the contents of Apple devices.
In another declaration, Erik Neuenschwander, Apple’s manager of user privacy, disputed a claim made by FBI electronics engineer Stacey Perino that Apple creates operating systems that work on only one specific device.
“Apple does not create hundreds of millions of operating systems each tailored to an individual device,” Neuenschwander said. “Each time Apple releases a new operating system, that operating system is the same for every device of a given model.”
Once Apple creates the software requested by the FBI, it would take only minutes for Apple or a “malicious actor with sufficient access” to perform the necessary engineering work to install it on another device of the same model, Neuenschwander said in his declaration.
Apple attorneys noted in their response that the case “arises in a difficult context after a terrible tragedy.”
“But it is in just such highly-charged and emotional cases that the courts must zealously guard civil liberties and the rule of law and reject government overreaching,” the motion states.
A motions hearing is scheduled for 1 p.m. March 22 in U.S. District Court in Riverside, where Pym will hear arguments from both sides before deciding whether to uphold or vacate her Feb. 16 order.
Staff writer Ryan Hagen contributed to this report.
©2016 the San Bernardino County Sun (San Bernardino, Calif.) Distributed by Tribune Content Agency, LLC.