RIVERSIDE, Calif. (CN) – Apple’s attorneys Thursday called the FBI’s demand that it help unlock San Bernardino shooter Syed Farook’s iPhone unconstitutional, and accused the government of using the specter of terrorism to “cut off debate and circumvent thoughtful analysis.”
Apple attorney Theodore Boutrous’ filing says the government is overreaching by using the All Writs Act of 1789 and that the centuries-old law does not allow the courts to demand that the company write new iPhone code.
The demand also violates Apple’s First Amendment Rights under the U.S. Constitution, its due process rights, and will create a “crippled” and “insecure” product, the attorney says.
Apple is moving to vacate U.S. Magistrate Judge Sheri Pym’s Feb. 16 order and opposes the government motion to compel, filed last week.
“This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and 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,” the Feb. 25 court filing states.
Justice Department spokeswoman Melanie Newman said the government is reviewing the filing and will “respond appropriately in court.”
“The Justice Department’s approach to investigating and prosecuting crimes has remained the same; the change has come in Apple’s recent decision to reverse its long-standing cooperation in complying with All Writs Act orders,” Newman said. “Law enforcement has a longstanding practice of asking a court to require the assistance of a third party in effectuating a search warrant. When such requests concern a technological device, we narrowly target our request to apply to the individual device.”
But Apple says no court has ever given the government the authority that it seeks in Pym’s order and that “no law supports such unlimited and sweeping use of the judicial process.”
The government suggested in its motion to compel that Apple was more interested in iPhone sales than the security of customers, and dismissed its concerns as a marketing strategy.
But Apple’s filing cites the massive hack of the Office of Personnel Management databases last year as a reason why Apple is so conscious of its customers’ security – and why the government should be taking its opposition more seriously.
“Apple uses encryption to protect its customers from cyberattack and works hard to improve security with every software release because the threats are becoming more frequent and sophisticated,” the motion states.
After whistleblower Edward Snowden’s revelations on mass surveillance programs run by the National Security Agency, Apple responded in September 2014 with a new version of its operating system, iOS 8, which encrypted and safeguarded consumers’ data.
“It is these protections that the government now seeks to roll back by judicial decree,” the motion states.
Apple says the government uses the All Writs Act to avoid asking Congress to amend existing law. It adds that the courts are a “forum ill-suited to address” the security and privacy issues raised by the government’s demand.
“And more importantly, by invoking ‘terrorism’ and moving ex parte behind closed courtroom doors, the government sought to cut off debate and circumvent thoughtful analysis,” Boutrous wrote.
The filing says the creation of a backdoor operating system will create a dangerous precedent that will “create a crippled and insecure product” and allow foreign governments to make similar demands.
“The government says: ‘Just this once’ and ‘Just this phone.’ But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts,” the motion states.
Apple says a favorable ruling for the government would allow state and federal prosecutors to cite the order in their efforts to unlock “hundreds” of devices in custody.
“Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote,” the court filing states.
If Apple is forced to write new code, the company argues, the government could demand that it write hacks to turn on an iPhone’s microphone or camera, or switch on location services to track users’ movements.
“Apple strongly supports, and will continue to support, the efforts of law enforcement in pursuing justice against terrorists and other criminals – just as it has in this case and many others. But the unprecedented order requested by the government finds no support in the law and would violate the Constitution,” the filing states.
A hearing on the motions is scheduled in Pym’s courtroom in Riverside on March 22 at 1:00 p.m.
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