Apple asks that judge's iPhone order be reversed, gets ACLU backing company

Apple pushed forward in its legal battle with the FBI over access to a San Beardino shooter’s iPhone by filing court documents Wednesday asking a U.S. magistrate to consider a recent federal ruling in New York supporting the technology giant in an unrelated case.

In a motion filed Feb. 25, Apple requested Magistrate Sheri Pym rescind her Feb. 16 order compelling the company to help the FBI hack the work-issued iPhone 5C used by gunman Syed Rizwan Farook by developing special software that would enable the govement to electronically run a sequence of random pass codes until the phone unlocks. Apple argued the govement was overreaching and that such a request was not only burdensome, but it was a potential threat to the security of millions of Apple product users.

• DOCUMENT: Read the ACLU’s legal brief supporting Apple in the iPhone maker’s fight with the FBI

Farook, an employee in the San Beardino County Division of Environmental Health Services, and his wife, Tashfeen Malik, opened fire at a training seminar for county employees Dec. 2 at Inland Regional Center, in San Beardino, killing 14 people and wounding 22 others. The couple died later in a shootout with police.

In its filings Wednesday, Apple said it wanted to bring to Pym’s attention Monday’s ruling by New York federal Judge James Orenstein in a drug trafficking case. Orenstein determined the govement caot force Apple to provide the FBI access to an iPhone, at least not via an 18th century law called the All Writs Act, which gives the courts leeway to compel third parties to provide technical assistance to law enforcement.

“In considering the burden the requested relief would impose on Apple, it is entirely appropriate to take into account the extent to which the compromise of privacy and data security that Apple promises its customers affects not only its financial bottom line, but also its decisions about the kind of corporation it aspires to be,” Orenstein wrote in his 50-page opinion.

“The fact that the govement or a judge might disapprove Apple’s preference to safeguard data security and customer privacy over the stated needs of a law enforcement agency is of no moment: in the absence of any other legal constraint, that choice is Apple’s to make, and I must take into account the fact that an order compelling Apple to abandon that choice would impose a cognizable burden on the corporation that is wholly distinct from any direct or indirect financial cost of compliance.”

Attoeys for Apple said in their pleading filed Wednesday that among the many reasons Orenstein cited in his ruling opposing the govement’s request, Orenstein found that the “govement’s expansive interpretation of the (All Writs Act)” suggested that there was no limit as to “how far the court may go in requiring a person or company to violate the most deeply rooted values to provide assistance to the govement the court deems necessary.”

Orenstein’s ruling could have a significant impact on Pym’s decision, which will likely be handed down during a March 22 hearing on the matter.

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Meanwhile, a series of friend of the court briefs supporting Apple’s position have surfaced, the latest Wednesday by the American Civil Liberties Union and its affiliates statewide.

In the 21-page brief, the ACLU argues the case raises constitutional questions about whether the govement is far-reaching in its attempt to compel Apple to assist in the investigation.

“If the govement gets its way, the legal precedent set by this case will reverberate far beyond this particular investigation and the single phone at issue,” the ACLU wrote.

The civil rights organization believes the case is an “unprecedented-law enforcement effort to conscript” a third party such as Apple to weaken the security of its own software; essentially putting at risk the security and privacy of hundreds of millions of Americans.

“Law enforcement may not commandeer iocent third parties into becoming its undercover agents, its spies, or its hackers,” according to the brief.

The ACLU argues the court order would violate the of the Fifth Amendment, which imposes “a limit on the nature of the assistance that law enforcement may compel, and the assistance sought here plainly exceeds that limit.”

This is not the first time the ACLU has come to the defense of Apple. The national organization took a similar stance several months ago in the case involving Apple and the FBI in New York. In that case, a magistrate earlier this week sided with the technology company.

All friend of the court briefs, called “amicus curiae” in legal terminology, for the San Beardino case will be filed in court Thursday.

Upland defense attoey Stephen Larson said he will file a brief in support of the govement on behalf of victims of the terrorist attack and surviving family members.

Various law enforcement organizations are also expected to file briefs in support of the govement.

Salihin Kondoker, the husband of a county employee who was shot and wounded in the attack but survived, sent a letter to Pym supporting Apple.

In the letter released to the media, Kondoker said he shares Apple’s fear that the software the govement wants them to use will be used against millions of other iocent people. He also believes it is unlikely there is any valuable information on the phone, as county employees were well aware that their communications could be tracked.

“Why then would someone store vital contacts related to an attack on a phone they knew the county had access to?” he wrote. “They destroyed their personal phones after the attack. And I believe they did that for a reason.”

Kondoker said his wife, Anies - an environmental health specialist for the county, was shot three times in the hallway while retuing to the training seminar from the restroom. Kondoker, a consultant for PG&E, said they have lived in San Beardino for four years.

“We are proud to call America our home and prouder still to be raising 3 children here,” he wrote. “We are also Muslim and have always taught our children that religion is about love and community. I don’t believe terrorism and religion have any coection. It is an act of hate.”

Kondoker said he was at first frustrated with Apple’s decision, but after reading more about the case he has come to understand that “their fight is for something much bigger than one phone.”

In his letter, Kondoker advocates for stronger gun laws as “it was guns that killed iocent people, not technology.”

Kondoker said he also believes that the FBI still has access to information they have ignored. He said he is disappointed in the way they have handled the investigation.

In closing, Kondoker said he nor his wife want to raise their children in a world where privacy is the trade off for security.

“I believe this case will have a huge impact all over the world,” he wrote. “You will have agencies coming from all over the world to get access to the software the FBI is asking Apple for. It will be abused all over to spy on iocent people.”

Staff Writer Sandra Emerson contributed to this report

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