Apple: Founders would be 'appalled' at FBI iPhone request

Apple: Founders would be 'appalled' at FBI iPhone request
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Apple on Tuesday filed the final brief expected from either the government or the tech giant before a March 22 hearing revolving around the locked iPhone of one of the San Bernardino shooters.


In the latest shot in the back-and-forth volley between Apple and the FBI, the tech giant refuted the government’s efforts to compel it to comply with a court order demanding it help the FBI unlock gunman Syed Rizwan Farook’s iPhone.

“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. The Founders would be appalled,” reads the brief, filed late in the afternoon.

The  debate over the device has been increasingly dominated by incendiary rhetoric on both sides, with the Justice Department calling Apple’s reliance on privacy concerns as “false” and “corrosive” in a recent filing.

Apple attorneys said Tuesday the company has attempted to steer away from the inflammatory tone of the dispute.

At the heart of Apple’s legal defense of its refusal to assist the FBI is an argument that the Justice Department is inappropriately taking advantage of an 18th-century law called the All Writs Act to force Apple to help it unlock the shooter’s phone.

The 1789 law allows federal judges to compel others to help the government perform its duties so long as requests are not "unduly burdensome.”

Apple argued in its Tuesday brief that the government, in its own briefs urging federal judge Sheri Pym to rule in its favor, has incorrectly argued that there is a precedent for its use of All Writs in this case.

“The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is,” the brief reads.

The original court order demands that the tech giant write a piece of code disabling a failsafe that triggers the phone to wipe its own memory if an incorrect password is attempted 10 times in a row.

Such a change would allow the FBI to hack into the device, which it says is necessary to its investigation of the December massacre. Apple argues that the new software is equivalent to a “backdoor” that would endanger the privacy and security of millions of everyday users of iPhones.

The company has argued from the beginning that the use of the All Writs Act in this case is governmental overreach, an assessment largely backed by the technology industry.

“The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data,” Apple CEO Tim Cook warned earlier this month when he announced the company would be opposing the agency’s demands.

The law has been used in the past to get Apple to hand over information from people’s locked mobiles, according to the government. Apple has complied with previous demands under the All Writs Act at least 70 times, a government lawyer claimed last year in a similar case in New York.

But in those cases, the government was not compelling the company to create a new piece of software — just turn over data that the company itself accessed.

Newer model phones, such as Farook’s 5c, have encryption to which Apple itself does not retain a key.

“We have put that data out of our own reach, because we believe the contents of your iPhone are none of our business,” Apple CEO Tim Cook wrote in an open letter explaining the company’s position.

Apple attorneys say that no case the government cites in its filings support a request for a private company with no connection to a criminal act to invent a product against its will.

“The government’s motivations are understandable, but its methods for achieving its objectives are contrary to the rule of law, the democratic process, and the rights of the American people,” the brief reads.

The Justice Department, meanwhile, made similar claims in its most recent filing, which accused Apple of willfully obstructing the FBI’s investigation.

“Apple’s rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government,” prosecutors wrote.

"The government and the community need to know what is on the terrorist's phone and the government needs Apple's assistance to find out," the brief reads.

— Cory Bennett contributed.