Apple files motion to dismiss FBI court order

Getty Images

Apple on Thursday asked a judge to vacate the court order directing the tech giant to help FBI agents unlock one of the San Bernardino shooter's smartphones.

The motion is the latest maneuver in the dispute between Apple and the FBI over the bureau’s attempts to access an iPhone used by Syed Farook, one of the two assailants in the California terror attack that left 14 people dead.

Apple last week defied the initial order, arguing the request sets a dangerous precedent that would allow the government to force companies to hack their own secure devices.

“If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent,” Apple said in a motion to vacate the order, filed Thursday afternoon to the U.S. District Court for the Central District of California.

The company also insisted that complying with the court order would mean creating software it described as a “back door” that hackers could use to crack other iPhones.

The motion dubbed this software "GovtOS," after Apple's operating system.

“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,” said the motion.

The FBI has repeatedly countered that it is only seeking to unlock this one specific phone in this one specific case.

“The San Bernardino litigation is not about us trying to send a message or establish some precedent; it really isn’t,” FBI Director James Comey told lawmakers during a hearing Thursday. “It’s about trying to be competent in investigating something that is an active investigation.”

In a conference call with reporters Thursday afternoon, an Apple executive was quick to point out that Comey also conceded in the hearing that the case would influence other judges’ decisions.

“A decision by a judge will guide how other courts handle similar requests,” Comey said at the hearing. “How judges interpret that is not binding — but will be important.”

The expected legal battle could go all the way to the Supreme Court, according to specialists.

The case has become the most high-profile standoff in a long-running debate over the access law enforcement should have to locked communications. Comey has long warned that impenetrable encryption is increasingly locking out investigators who have warrants to access a suspect's device.

Technologists and privacy advocates have pushed back, insisting that unbreakable encryption is indispensable to online security and privacy.

In its legal defense, Apple is relying on both First Amendment and Fifth Amendment arguments to contest the order.

The company said software code is protected as “speech” and that the government can’t compel Apple’s speech, meaning it can’t force it to write code.

“Apple wrote code for its operating system that reflects Apple’s strong view about consumer security and privacy,” the company said in a fact sheet. “By forcing Apple to write software that would undermine those values, the government seeks to compel Apple’s speech and to force Apple to express the government’s viewpoint on security and privacy instead of its own.”

The order also infringes on Apple's “Fifth Amendment right to be free from arbitrary deprivation of its liberties,” the company said, because the request “would conscript Apple to develop software that undermines the security mechanisms of its own products.”

The government is relying on the 1789 All Writs Act, which allows federal judges to compel others to help the government perform its duties so long as requests are not “unduly burdensome.”

“The All Writs Act … is a tool that I used as a young prosecutor, [that] we’ve used for hundreds of years so that courts can have their orders' given effect,” Comey said at Thursday’s House Intelligence Committee hearing.