FBI's request unconstitutional, Apple claims in response to court order

Apple Inc. filed a motion Thursday in federal court requesting that the Feb. 16 court order compelling the company to assist the FBI in accessing an encrypted iPhone used by the gunman in the Dec. 2 terrorist attack in San Beardino be vacated.

“The govement demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted govement surveillance,” according to the motion filed in U.S. District Court in Riverside by attoey Theodore J. Boutrous, one of the attoeys representing Apple.

The govement’s request would set a dangerous precedent and require Apple to create an FBI forensics lab at its facility with the potential to be used on hundreds of iPhones now in law enforcement’s possession, which conflicts with the law and is a violation of the first and fifth amendments of the U.S. Constitution, according to the motion.

“No court has ever authorized what the govement now seeks, no law supports such unlimited and sweeping use of judicial process, and the Constitution forbids it,” the motion states. “Such an order would inflict significant harm - to civil liberties, society, and national security - and would preempt decisions that should be left to the will of the people through laws passed by Congress and signed by the president.”

U.S. Attoey spokesman Thom Mrozek declined to comment Thursday.

The FBI has sought Apple’s help in unlocking the work-issued iPhone used by San Beardino gunman Syed Rizwan Farook. Authorities have not been able to access information on the phone because it is locked by an encrypted pass code. Investigators believe Farook was in contact with some of the shooting victims before the attack at the Inland Regional Center.

On Feb. 16, Magistrate Sheri Pym granted the govement’s application and ordered Apple to assist in creating software that would allow the FBI to bypass the iPhone’s auto erase function and allow investigators to electronically enter pass codes. Apple CEO Tim Cook aounced the same day that Apple would fight the order.

Apple was ordered to file its response Friday, but the company filed it a day early - the same day FBI Director James Comey testified before the House Intelligence Committee. He acknowledged that last week’s order from Pym could help guide other courts considering the same issue in the future. But he rejected Apple’s assertion that the order could create a slippery slope affecting millions of other iPhone users.

Comey said he had been told by technology experts that the combination of the phone and operating system are “sufficiently unusual that it’s unlikely to be a trailblazer because of technology being the limiting principle.” He insisted that the code the FBI was asking Apple to create would work only on the one phone and would be retained by Apple.

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“The idea of it getting it out in the wild and working on my phone or your phone — at least the experts tell me — is not a real thing,” Comey said.

Apple disagrees, stating in its motion that the govement is requesting Apple engineers create a backdoor to the work-issued iPhone used by Farook would make users’ personal information vulnerable to “hackers, identity thieves, hostile foreign agents, and unwarranted govement surveillance.”

“Indeed, the govement itself falls victim to hackers, cyber-criminals, and foreign agents on a regular basis,” according to the motion, citing as an example the June 2015 data breach at the U.S. Office of Persoel Management, which affected more than 22 million current and former federal workers and their family members.

Erik Neuenschwander, manager of user privacy for Apple, said in a declaration included in Apple’s motion, the technology, in the wrong hands, could potentially be disastrous.

“If a purpose-built operating system such as the one the govement seeks here got into the wrong hands it would open a significant new avenue of attack, undermining the security protections that Apple spent years developing to protect its customers,” Neuenschwander said.

Even if the computer code used to design the specialized software for the govement is completely eradicated from Apple’s servers so as to be irretrievable, the process could still be replicated, Neuenschwander said. He said it would take a minimum of two weeks, likely a month, and a staff of between six and 10 engineers to create the operating system the govement demands.

Justice Department spokeswoman Melanie Newman issued a statement Thursday saying that law enforcement has a longstanding practice of seeking court orders compelling third parties to assist in the execution of search warrants, and only now has Apple refused to cooperate with the govement.

“When such requests conce a technological device, we narrowly target our request to apply to the individual device,” Newman said. “In each case, a judge must review the relevant information and agree that a third party’s assistance is both necessary and reasonable to ensure law enforcement can conduct a court-authorized search.”

She said Justice Department attoeys are reviewing Apple’s filing and will respond appropriately in court.

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