Apple lays out legal arguments to resist FBI’s iPhone demand

Tim Cook has called it nothing less than a threat to civil liberties, the digital privacy of millions and even children’s safety.

Now, a week after 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 painted the case as being one of the Justice Department overstepping its authority, saying it isn’t about a single iPhone but “the FBI seeking through the courts a dangerous power that Congress and the American people have withheld; the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.”

In a filing Thursday to a federal court in Riverside, California, Apple asked the magistrate to set aside her Feb. 16 order requiring it to help the FBI defeat the encryption on the iPhone used by Syed Rizwan Farook, who led the shooting rampage with his wife. The company argued unlocking Farook’s device could ultimately make all its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents and unwarranted government surveillance.

‘Greater good’

“The greater public good is a secure communications infrastructure protected by ubiquitous encryption at the device, server and enterprise level without building in means for government monitoring,” Apple said.

While the government has said it isn’t asking for a backdoor or trying to set a precedent and is only concerned with accessing Farook’s phone, Apple is already fighting at least eight other attempts to force it to aid prosecutors in opening devices tied to investigations. The company says that if it complies with one order, others will follow and foreign governments may also make similar demands.

Apple’s response to the order is the company’s first formal step in a case that could be destined for the U.S. Supreme Court. In 65 pages, the filing lays out a basic legal argument: that the court has overreached its authority by compelling Apple to write new software, and that forcing the company to do so would represent an “undue burden.” The government’s demand violates Apple’s constitutional rights against compelled speech and forced business activities, the company argued.

Hypersecure room

It could take as many as 10 company engineers and employees as long as four weeks to devise the software needed to unlock the phone, Apple said. These engineers would also have to use a hypersecure isolation room to create and test the new compromised operating system and then supervise its use by the FBI. Then they’d have to tear it all down, Apple said.

“No operating system currently exists that can accomplish what the government wants, and any effort to create one will require that Apple write new code, not just disable existing code functionality,” according to the filing.

Apple 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 prosecutors relied on for last week’s order. The act compels third parties to take “non-burdensome” steps to help law enforcement carry out search warrants in circumstances not covered by other statutes and doesn’t authorize a judge to “conscript Apple” into developing software, the company said.

‘Too dangerous to build’

“The order demanded by the government compels Apple to create a new operating system — effectively a ‘back door’ to the iPhone — that Apple believes is too dangerous to build,” Apple said.

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 on whether to enforce the order is scheduled for March 22 in Riverside.

Apple also scolded the FBI for an error in its investigation. It said agents changed the password associated with one of the attacker’s accounts without consulting the company or reviewing public materials about the operating system. This kept the phone from automatically backing up to the iCloud. The government has already accessed the data on the iCloud, which ended more than a month before the attack. Without that mistake, this dispute might not have arisen, Apple said.

Free speech

Computer code is well-established to be protected by the First Amendment right to free speech, Apple argued. The company said it can’t be compelled in this case to create the code because that would impinge on its freedom of expression. The lawyers then unspooled some fanciful scenarios including a pharmaceutical company being forced to create a drug used for lethal injection or a journalist being told to plant a false story to lure a fugitive out of hiding.

The hypothetical prospect of forcing a company to make a drug for lethal injections was previously discussed in Brooklyn, New York, where prosecutors are trying to get access to a convicted drug dealer’s phone. A decision is expected shortly in that case.

The California filing comes a day after Cook blasted the U.S. demand as being “bad for America” in a nationally televised interview with ABC News. And in fiercely worded blog posts, the Apple chief executive 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.

Privacy vs. safety?

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 Farook’s motives. 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 digital, may have eclipsed U.S. laws. Just before the company’s filing was posted, U.S. Representative David Jolly, a Florida Republican, said “Apple’s leadership risks having blood on its hands” if it doesn’t cooperate with FBI and it is determined that critical information on the phone could have prevented a future attack.

“Tim Cook will have a hard time explaining that,” Jolly said during a hearing of a House Appropriations subcommittee to review the FBI budget.

‘Immune spaces’

FBI Director James Comey told the subcommittee that he doesn’t think it’s a good idea to have “spaces immune to search warrants,” such as phones and other devices. He conceded that the judge’s decision in the Apple case could influence the thinking of courts handling future conflicts over encryption.

Comey says one mystery the FBI would like to solve involves where the terrorists were for 19 minutes after the attacks. Agents have scoured security cameras at gas stations and other retailers but can’t figure it out, Comey said. The answer may reside on the man’s phone, he said.

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 back door into the iPhone’s data could end up exposing all Americans to cyber criminals and hackers.

Technology companies including Twitter Inc., Google Inc. and Microsoft Corp. plan to file friend-of-the-court briefs in support of Apple next week, as will the American Civil Liberties Union. Families of those killed in the San Bernardino attack will file briefs in support of the government, their lawyer said.

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.

The case is In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, 16-00010, U.S. District Court, Central District of California (Riverside).