Government Fires Back Against Apple, Wants Forced Access Into Our iPhones


Matt Reynolds | The Free Thought Project

RIVERSIDE, Calif. (CN) – The federal government on Friday told a federal judge it doubted that Apple is really concerned about the privacy of millions of iPhone users, and that the tech giant’s resistance to unlocking terrorist Syed Farook’s iPhone is driven by “marketing concerns.”

In a motion filed Friday in Federal Court, the government asked a judge to force Apple to comply with what it describes as a lawful and binding order, and provide the master key to unlock the iPhone 5c recovered from Farook’s black SUV after last year’s terrorist attack in San Bernardino.

On Tuesday, U.S. Magistrate Judge Sheri Pym ordered Apple to provide “reasonable technical assistance” to Federal Bureau of Investigation (FBI) technicians trying to get into the password-protected device. Ten failed attempts at cracking the code would auto-erase all the data.

Apple CEO Tim Cook responded by calling the FBI’s request “chilling” and said the order would require the creation of a backdoor operating system for the iPhone. Cook said that such software would be “too dangerous to create” and said that Apple will fight the order in court.

“Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software – which does not exist today – would have the potential to unlock any iPhone in someone’s physical possession,” Cook wrote in a Feb. 16 message to Apple customers.

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But in Friday’s motion to compel, the government brushes off Apple’s concerns.

The court’s order “does not mean the end of privacy,” the government says, and Apple would maintain full control over any master key it created to unlock the phone. FBI technicians would access the phone remotely in order to crack the passcode.

“This eliminates any danger that the software required by the order would go into the ‘wrong hands’ and lead to criminals’ and bad actors’ ‘potential to unlock any iPhone in someone’s physical possession,'” the motion states, citing Cook’s letter frequently throughout.

Pym’s order from Tuesday applies only to Farook’s iPhone, the government added.

“The order does not, as Apple’s public statement alleges, require Apple to create or provide a ‘back door’ to every iPhone; it does not provide ‘hackers and criminals’ access to iPhones; it does not require Apple to ‘hack [its] own users’ or to ‘decrypt’ its own phones; it does not give the government ‘the power to reach into anyone’s device’ without a warrant or court authorization; and it does not compromise the security of personal information,” according to the motion.

Perhaps more irksome for Apple is the government’s claim that Cook’s refusal to unlock the phone arises from marketing concerns.

“Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which has been found by this court to be warranted for an important investigation. Despite its efforts, Apple nonetheless retains the technical ability to comply with the order, and so should be required,” the court filing states.

As to that technical ability, the government attempted to diminish the public’s concerns about creating a new backdoor operating system by calling the software required to open Farook’s phone no more of a “hack” than “any update” Apple sends to its customers.

“Indeed, it is less so because the software requested would not reside permanently on the subject device, and Apple can retain control over it entirely,” the Feb. 19 motion states. “The order does nothing regarding the encryption aspect of the operating software, but instead implicates only the non-encryption additional features that Apple has programmed.”

Phone records show that Farook communicated with the other shooter, Tashfeen Malik, with the device on Dec. 2, the day of the shooting. However, the available backup of iCloud data was from Oct. 19, 2015, the government says.

It says that Apple should abide by Pym’s “valid order” under the All Writs Act of 1789. Cook said prosecutors were citing the centuries-old law in order to avoid Congressional authority.

But the government dismissed the argument, noting that until last year Apple did not dispute any search warrants to take off data from older devices.

The government says the court’s order does not place an undue burden on Apple and that “Congressional inaction does not deprive courts of their authority under the All Writs Act” and no federal law “addresses data extraction from a passcode-locked cell phone.”

The federal government filed the motion through Los Angeles U.S. Attorney Eileen Decker.

Apple could not immediately be reached for comment by phone.

Published by Courthouse News Service.