In a stinging rebuke of Apple, federal prosecutors contended Friday that the company was “not above the law” and could easily help the government unlock a terrorist’s smartphone without undermining anyone else’s privacy.
“Rather than assist the effort to fully investigate a deadly terrorist attack,” government lawyers said, Apple “has responded by publicly repudiating” a court order demanding the company’s help.
Apple's fight with the FBI has readers divided
The court filing portrayed the conflict as a battle between FBI agents working tirelessly to obtain key information about a terrorist plot that killed 14 people and injured 22 in San Bernardino in December and a private company wishing to protect its reputation and brand.
In a motion to compel Apple’s help, prosecutors also accused the company of making misleading statements.
“The order does not, as Apple’s public statement alleges, require Apple to create or provide a ‘back door’ to every iPhone,” the filing said. “It does not provide ‘hackers and criminals’ access to iPhones … and it does not give the government ‘the power to reach into anyone’s device’ without a warrant or court authorization.”
Prosecutors said the software that law enforcement wants Apple to write could be kept in the custody of Apple and would not have to be shared with others.
“No one outside Apple would have access to the software required by the order unless Apple itself chose to share it,” the government said.
Prosecutors also insisted that the order seeking Apple’s assistance reflected a central principle in American law that citizens can be called upon to help law enforcement. Indeed, the motion argued, some technology companies have been required to write some amount of software to comply with subpoenas in other cases.
“Apple’s current refusal to comply with the court order’s order, despite the technical feasibility of doing so, instead appears to be based on its concern for its business model and public brand marketing strategy,” prosecutors wrote.
The government also argued that the law can compel someone to provide something that didn’t previously exist. Prosecutors cited the case of a defendant whose computer was encrypted. He was ordered to help the government produce a copy of the unencrypted contents of the computer, the motion said.
The phone that needs to be unlocked may contain critical communications that the FBI has been unable to recover elsewhere, the filing said.
The FBI wants to hack into that Apple iPhone 5C, which was shooter Syed Rizwan Farook's work phone from the San Bernardino County Department of Health. Farook and his wife, Tashfeen Malik, died in a firefight with police hours after the attack.
Computer forensics analysts fear the precedent of Apple complying with the order. Once Apple does this in this case, the government will request it again and again, they said.
Apple officials said they would respond to the filing later Friday.
Prosecutors sought to downplay the issue of encryption technology in the terror case, arguing that the software it’s seeking from Apple amounts to an innocuous update.
It would make it easier for the FBI to guess Farook’s passcode by ensuring a couple of settings are turned off, including one that would wipe the phone’s contents in the event of 10 incorrect unlock attempts. The company regularly issues updates that modify settings, the court filing said.
With Farook dead and his employer, which owns the iPhone, consenting to the search, the requested software would not invade anyone’s privacy and wouldn’t undermine encryption, prosecutors contend.
“This court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company -- complying with a lawful court order -- could be obviated because that company prefers to market itself as providing privacy protections that make it infeasible to comply with court-issued warrants,” prosecutors said.
The Justice Department also reiterated its stance that Apple has the means to fulfill the court order. As of Wednesday, the company was still weighing how complicated it would be to develop a tool for the FBI.
“At no point has Apple ever said that it does not have the technical ability to comply with the order, or that the order asks Apple to undertake an unreasonable challenging software development task,” prosecutors wrote Friday. “On this point, Apple’s silence speaks volumes.”
Twitter: @peard33 @mauradolan
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