- U.S. defense in case over gunman's iPhone elicits harsh rebuke
- Apple using `alarm' tactics to win over court, prosecutors say
The Justice Department and Apple Inc. ratcheted up their battle over access to a terrorist’s iPhone, with prosecutors saying the company’s argument against helping the U.S. is undercut by its own assistance to China and the Silicon Valley giant calling the government so “desperate” it’s resorting to conspiracy theories.
The government, seeking to defend a court order for Apple to help the FBI unlock a phone used by one of two attackers who killed 14 people in San Bernardino, California, told a federal judge Thursday the company is standing in the way of evidence that may further its investigation. Cooperating would come at little cost to Apple, the world’s most valuable company, the government said.
Apple shot back in a conference call with reporters, accusing the Justice Department of trying to “smear” it with “false accusations and innuendo.”
Apple’s claim that creating software to help the FBI would open the door for foreign governments to make similar demands was “misleading” because the company already has a history of providing assistance to China, the government said.
Citing Apple’s own data, the Justice Department said in Thursday’s filing that the company complied with about three-quarters of China’s requests during the first half of last year. Apple “appears” to have made special accommodations in China by putting user data on government servers and installing a government-required WiFi protocol on phones, the Justice Department said, citing media reports.
“Such accommodations provide Apple with access to a huge, and growing, market,” the government said. “This court’s order changes neither the carrots nor the sticks that foreign governments can use on Apple.”
Apple and sometime rivals including Amazon.com Inc., Google and Microsoft Corp. have decried what they call an unprecedented expansion of government power that endangers the privacy of hundreds of millions of people. The Justice Department tried to narrow the focus back to the iPhone 5c used by a San Bernardino County employee who, with his wife, opened fire at a holiday work party on Dec. 2. and died about four hours later in a police shootout.
Apple and its supporters “try to alarm this court with issues of network security, encryption, back doors, and privacy, invoking larger debates before Congress and in the news media,” the U.S. said in its reply to arguments filed by the tech companies . “That is a diversion. Apple desperately wants -- desperately needs -- this case not to be about one isolated iPhone.”
Federal prosecutors won a court order on Feb. 16 requiring Apple to help the FBI bypass the phone’s security features to access encrypted data. They contend that the cooperation they’re seeking isn’t different in nature than what courts have ordered Apple and other companies to provide in the past.
Apple’s transparency report for the first six months of 2015 indicates that 9,717 devices were targeted in information demands from the U.S. -- more than twice as many as in China. The compliance rate in the U.S. was 81 percent. The same report shows Apple also provided data to other governments, most of it involving phones reported as lost or stolen.
The data the government is citing on China isn’t the same as what is being sought in the San Bernardino case. The difference is that phone’s data is stored locally on the device behind encryption protections, which isn’t something Apple is known to have helped the Chinese government overcome.
The U.S. is the only country to seek the kind of backdoor access to an iPhone at issue in the case, Apple said. The company said it hasn’t received similar requests from China or other nations.
An attorney for Apple said its dealings with China aren’t unusual. The company has servers in China to provide movies, music and other content to users there. The data is encrypted and if the government wants access, it must go through a legal process.
Apple General Counsel Bruce Sewell labeled as ridiculous the assertion that the company has a nefarious relationship with China. Criticizing the government’s use of information from unidentified Internet sources, he joked that the argument was akin to claiming the FBI couldn’t be trusted because of online conspiracy theories that the agency was behind assassination of President John F. Kennedy.
Apple argues it can’t be forced under a 1789 law, the All Writs Act, to create software to help the FBI unlock the phone. That law has been used by prosecutors to get court orders requiring those not involved with a crime to provide reasonable assistance to help enforce search warrants. Apple and its tech industry and privacy rights supporters argue the law doesn’t allow companies to be forced to help the U.S. access encrypted information, saying Congress has so far refused to create such a requirement
In its filing Thursday, the government stuck to its core argument that one of the world’s most technologically savvy companies can easily help it with one phone without risking the security of its operations or the privacy of its customers.
“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,” prosecutors said in the filing. “Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden.”
Sewell called the allegation that Apple deliberately changed iPhone security to block law enforcement “deeply offensive.”
The government also disputed Apple’s claim that the legal fight could have been avoided if investigators hadn’t bumbled by changing a password to the phone’s iCloud account. Backing up to the cloud wouldn’t have revealed all of the potentially valuable information on the phone because some notes and information such as the keystroke cache would still be only on the device, the U.S. said.
Finally, prosecutors said Apple’s claim that software code is a form of speech protected by the Constitution’s First Amendment is “particularly weak.” Compelling a for-profit company to modify software can’t be compared to forcing a person to say something, the U.S. said.
The magistrate judge in Riverside, California, who directed Apple to help the FBI unlock the phone used by Syed Rizwan Farook in the Dec. 2 attack is set to consider at a March 22 hearing whether to leave that order in place.
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).