The Deparment of Justice has fired back at Apple in its latest court filing, regarding the San Bernardino Shooter's iPhone 5c. The 48-page filing defends the All Writs Act as necessary for law enforcement, and puts forth that the "larger debates before Congress" is a diversion planted by the Cupertino manufacturer because "Apple desperately wants -- desperately needs -- this case not to be 'about one isolated iPhone'" in order to fend off the court ruling.
The controversy began on February 16, when US magistrate judge Sheri Pym surprised Apple with an order compelling it to provide assistant to the FBI in its investigation into a particular iPhone used by Syed Rizwan Farook, one of the two attackers in the San Bernardino workplace massacre
, which killed 14 people and injured another 22. Farook and his wife, Pashfeen Malik, were killed by police in a shootout about five hours after the massacre. Judge Pym ordered Apple to provide software to the FBI that would both nullify the short delay between passcode attempts, and prevent the iPhone from automatically erasing itself after 10 unsuccessful tries -- effectively defeating the iPhone's ability to protect users from "brute-force" attacks on passcodes, such as those used by hackers, thieves, and authorities who have seized an iPhone for whatever reason.
Apple objected to the order
, saying the software would create a security risk for all users, and expose the entire contents of the iPhone, which violates both the Fourth and Fifth Amendments to the US Constitution. The FBI, in turn, asked the judge to compel Apple to accept the order without a chance to challenge it
. Today's filing by the Department of Justice is the third to Judge Pym's court, and the fifth overall.
Today's filing notes that in designing the iPhone and iOS in the first place that "Apple deliberately raised technological barriers that now stand between a lawful warrant and an iPhone containing evidence related to the terrorist mass murder of 14 Americans." It also claims that Apple will be under no undue burden to open the phone allowing the FBI to rummage through its contents, and that in its opinion, and "under those specific circumstances, Apple can be compelled to give aid."
The filing uses an assortment of inflammatory language, in contrast to Apple's own filings but similar to its public statements. It retorts that Apple's filing for relief from the demand in accordance with the court's own order is "corrosive," adding that "instead of complying, Apple attacked the All Writs Act as archaic, the Court's Order as leading to a 'police state,' and the FBI's investigation as shoddy, while extolling itself as the primary guardian of Americans' privacy."
In defending the All Writs Act, the filing calls the act timeless, and claims that "technology is constantly advancing, but these advances have never required the AWA to retreat." It also claims that there is no Congressional debate needed to decide on the warrant, saying that through the All Writs Act, that Congress has empowered the court to decide the matter. This sitting Congress seems to believe otherwise, however,
Continuing its inflammatory language, the Department of Justice writes that "Apple is not some distant, disconnected third party unexpectedly and arbitrarily dragooned into helping solve a problem for which it bears no responsibility. Rather, Apple is intimately close to the barriers on Farook's locked iPhone because Apple specifically designed the iPhone to create those barriers."
In an attempt to pin Apple to the case more closely and to refute claims that Apple is too far removed from the case to be mandated to comply with the court order, the Department of Justice confirms Apple's control over the App Store and associated hold on the apps installed on the phone and says that "Apple remains close to its iPhones through careful management and constant vigil over what software is on an iPhone and how that software is used" by phone owners -- glossing over the fact that San Bernardino county should have been well aware of what was installed on the phone through enterprise management.
Older arguments are consulted frequently in today's filing, because more recent laws to cover such situations have yet to be drafted. Cases from the 1970s involving wire taps are heavily invoked, coupled with the government's insistence in the filing that it is only one phone that they are after. It is technically true that this case centers around one phone, but testimony under oath given by FBI Director James Comey and New York City District Attorney Cyrus Vance prove that claim to be incorrect.
The filing has a brief discussion about denying the "greater good" needing to to be served by not having Apple intentionally weaken device security. It denies that in previous cases cited by Apple, that there is no overall security weakness that will be induced in the phone by Apple's development of an unlock tool for the phone, drawing parallels to an employee being forced to wear a large monitoring device while working in a sawmill.
Despite the investigation of the San Bernardino attack being completed, and no additional danger posed to the public by the pair of shooters, the Department of Justice calls the unlock of the phone "a necessity in investigating a terrorist attack" where the monitoring device in the sawmill was a dangerous luxury in the investigation.
In an interesting footnote, the Department of Justice argues against Apple's claims that "criminals and terrorists will encrypt their data in other ways." It claims that "if this reasoning were correct, there would be no purpose to wire-taps" as "because criminals can add another layer of security (such as talking in code) they do not always do so." It goes on to add that even if there are further layers of encryption "the government may be able to pierce that encryption -- but only if it can get into the phone in the first place."
Wrapping up its argument, the Department of Justice says that "the centuries since 1789 have proven, courts' exercise of power under the Act does not lead to a headlong tumble down a slippery slope to tyranny." The filing postulates that the limits that Apple is seeking in its own filing are already found in the All Writs Act and the Constitution, and are adequately defended by existing "congressional legislation, executive restraint, and judicial discretion."
The hearing in California court is scheduled for March 22. The story will not be concluded there, as there are additional Congressional hearings on the matter forthcoming, as well as expected appeals from whichever side is ruled against.