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U.S. Attorneys Respond To Apple In Court, Call Privacy Concerns 'A Diversion'

The FBI wants to access data on a password-protected phone used by one of the San Bernardino shooters.
Mandel Ngan
AFP/Getty Images
The FBI wants to access data on a password-protected phone used by one of the San Bernardino shooters.

The Justice Department on Thursday filed its latest argument in the dispute with Apple over access to a locked iPhone, accusing Apple of "false" rhetoric and "overblown" fears in its public refusal to cooperate with a court order.

Apple is fighting a federal magistrate judge's order to write special software that would lift security features that prevent the FBI from cracking the passcode on the phone used by Syed Rizwan Farook, one of the San Bernardino shooters. Apple has argued that would amount to creating a master key to millions of other iPhones.

"Far from being a master key, the software simply disarms a booby trap affixed to one door: Farook's," the lawyers write in response, calling the wide-spanning security concerns a "diversion" on Apple's part.

"Apple desperately wants — desperately needs — this case not to be about one isolated iPhone ... 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," the lawyers write.

The Justice Department echoes FBI Director James Comey's argument that growing adoption of strong encryption was creating "warrantproof" devices, arguing that the order from the magistrate judge was narrow and targeted.

"Apple's rhetoric is not only false," the lawyers write, "but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government."

It remains unclear what, if anything, is on the password-locked phone, but the FBI suggests there's "probable cause to believe there is evidence of a terrorist attack." Without the passcode, the investigators cannot access the phone's encrypted content, and attempting to guess it would risk causing the phone to delete the data. Government lawyers urge the court to demand Apple's compliance with the order.

"That is not lawless tyranny," the U.S. Attorneys say. "Rather, it is ordered liberty vindicating the rule of law."

Apple's public campaign against the court order has focused on the call for lawmakers in Congress — not the court system — to resolve how much access law enforcement should have to information secured by a password or by encryption. Its position has garnered support from dozens of tech companies and privacy, civil liberties and human rights groups.

At the heart of the debate is the government's reliance on the All Writs Act, a broad 1789 law that gives courts power to, among other things, compel companies' cooperation in investigations.

The government argues that many of the positions adopted by Apple — including the emphasis on lawmakers determining the power of the All Writs Act, and the concerns of the law creating "a slippery slope" — were argued before the Supreme Court decades ago, and were dismissed.

"In the forty years since that decision, it has become clear that the Court was correct because those fears have proved unfounded," the U.S. attorneys write.

In a call with reporters, Apple's top lawyer Bruce Sewell said the tone of the government's response sounded like an "indictment," NPR's Aarti Shahani reports. He also called the filing "deeply offensive."

Apple is due to respond to this latest filing from the government by March 15. A hearing has been set in California for March 22.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Alina Selyukh is a business correspondent at NPR, where she follows the path of the retail and tech industries, tracking how America's biggest companies are influencing the way we spend our time, money, and energy.
Camila Flamiano Domonoske covers cars, energy and the future of mobility for NPR's Business Desk.
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