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

Apple Inc. is asking a federal magistrate to rescind her Feb. 16 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.

In a motion filed Thursday in U.S. District Court in Riverside, attoeys for Apple accused the govement of seeking through the courts a “dangerous power” that threatens to “undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.”

“The govement demands that Apple create a backdoor 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 violates Apple’s constitutional rights, 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.”

On Feb. 16, U.S. Magistrate Judge Sheri Pym granted the govement’s request and ordered Apple to assist in creating special software needed to access the work-issued iPhone 5C of Syed Rizwan Farook, the 28-year-old environmental health specialist for San Beardino County who along with his wife, Tashfeen Malik, 29, killed 14 people and wounded 22 others at the Inland Regional Center during a training seminar for county health inspectors. The Redlands couple were killed in a shootout with police hours after the attack, which the FBI declared the deadliest terrorist attack on U.S. soil since 9/11.

Apple argues that “such an important decision with such widespread global repercussions goes well beyond the All Writs Act,” which gives the court the authority to order a third party to provide nonburdensome technical assistance to law enforcement officers. The 18th-century law was used to secure the Feb. 16 order and has been used to secure similar orders in courts across the country.

Attoeys for Apple argue that the All Writs Act does not support such sweeping use of judicial power, nor grant the courts blanket authority to “change the substantive law, resolve policy disputes or exercise new powers that Congress has not afforded them.”

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Authorities have not been able to access information on the phone because it is locked by an encrypted passcode, and investigators believe Farook had been in contact with some of the victims prior to the shooting.

Apple CEO Tim Cook issued a response on the company’s website following Pym’s order, saying the company would fight it.

The legal battle pits the interests of law enforcement against the privacy and personal safety interests of the public.

Instead of seeking changes in the law through Congress, the govement used the courts to facilitate its request, Apple contends in its motion.

“By invoking ‘terrorism’ and moving ex parte behind closed courtroom doors, the govement sought to cut off debate and circumvent thoughtful analysis,” the motion states.

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

Justice Department spokeswoman Melanie Newman issued a statement Thursday saying that law enforcement has a long-standing 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. A hearing is scheduled for March 22.

The software the govement wants Apple to create would bypass a self-destruct feature that erases the phone’s data after too many unsuccessful attempts to guess the passcode. The FBI wants to be able to try different combinations in rapid sequence until it finds the right one, asking Apple to remove the tamper-resistant hardware that creates an 80th of a millisecond wait time per password attempt. Without it, it could take years to try all the combinations of a six-character alphanumeric passcode.

Apple would have to create a new version of the iPhone’s operating system because the software, which would create a backdoor to the device’s encrypted data, does not exist.

“This would make it easier to unlock the iPhone by ‘brute force,’ trying thousands or millions of passcode combinations with the speed of a mode computer,” according to the motion. “In short, the govement wants to compel Apple to create a crippled and insecure product.”

Despite the govement’s position that the technology it is requesting is exclusive to one iPhone, Apple insists it will set a precedent and open the door to more requests.

“The govement says: ‘Just this once’ and ‘Just this phone.’ But the govement knows those statements are not true; indeed the govement has filed multiple other applications for similar orders, some of which are pending in other courts.”

Also on Thursday, FBI Director James Comey testified before the House Intelligence Committee. He rejected Apple’s assertion that the order could create a slippery slope affecting millions of other iPhone users.

He 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.

“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.

Erik Neuenschwander, manager of user privacy for Apple, said in a declaration included in Apple’s motion that even if the special software designed for the govement is completely eradicated from Apple’s servers so as to be irretrievable, it could still be replicated. 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.

Apple made significant resources available to the FBI on a 24/7 basis, Apple attoey Lisa Olle said in her declaration included with the motion. That included requests for information received at 2:46 a.m. on the Saturday after the San Beardino attack and information Apple supplied repeatedly over the following months, often on the same day it was requested, according to Olle, who supervised the legal responses related to the Dec. 2 shooting.

The govement’s request would put a significant burden on Apple in this case and likely in many others, she said.

“Given my background and experience, I believe that if Apple were required to comply with the order in this case, I would receive similar orders from other law enforcement agencies, and Apple would need to hire people whose sole function would be to assist in processing and effectuating such orders,” Olle wrote. “These people would have no other necessary business or operations function at Apple.”

Staff Writers Liset Marquez, Ryan Hagen and Sandra Emerson and The Associated Press contributed to this report

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