Apple court papers: FBI is seeking ‘dangerous power’ that violates its constitutional rights

Apple dug in Thursday for its blockbuster legal battle against the U.S. government, arguing in new court papers that a federal judge overstepped her authority and violated the company’s constitutional rights when she granted an order compelling it to help unlock a terrorist’s iPhone.

Attorneys for the technology behemoth argued that the order requiring the company to write new software to allow FBI agents to circumvent the phone’s security features relies improperly on a centuries-old law. The lawyers also argued in their papers filed in U.S. District Court in Riverside that the order violates the 1st Amendment’s protections against forced speech — in this case, written computer code — and the 5th Amendment, which guards against government incursions on property and liberty.

The company’s filing also echoed concerns that its chief executive, Timothy Cook, has raised in recent public comments — that the order would open a door for hackers and embolden law enforcement authorities to pry into customers’ private data.

“This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe,� the company wrote.

Apple’s arguments were the latest turn in a case that has quickly emerged as the focal point in a high-stakes dispute over how far technology companies must go in aiding law enforcement and how solving crimes can be balanced with protecting the privacy of customers.

U.S. Magistrate Judge Sheri Pym, who issued the order earlier this month, must now rule on Apple’s motion to dismiss it. The two sides are scheduled to argue before Pym next month.

Her order grants a request from federal prosecutors to force Apple technicians to help FBI agents access the contents of an iPhone 5C that belonged to Syed Rizwan Farook, one of two assailants in the Dec. 2 attack in San Bernardino that killed 14 people.

A Justice Department spokeswoman said the agency was reviewing Apple’s arguments but insisted that prosecutors’ request for help was nothing new. In the San Bernardino case, spokeswoman Melanie Newman said, Apple had reversed “its long-standing cooperation� in complying with these types of court orders. The order, she added, was narrow in scope, dealing only with Farook’s phone.

Although FBI agents have pieced together much about Farook and his wife, who joined him in the attack, they have expressed hope the confiscated phone contains information that would help answer outstanding questions, such as whether the killers had accomplices.

The phone runs on Apple’s newest operating system, which includes enhanced security measures and encryption. Worried that Farook probably enabled a security feature on the phone that makes it inoperable after 10 failed attempts to enter the secret security code he selected, agents approached Apple for assistance in getting into the device. Until the correct security code is entered, Apple’s encryption software keeps the contents of the phone scrambled.

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FBI agents wanted Apple engineers to write new software that would bypass the 10-attempt limit on the security code and other security measures built into the phone. With this done, agents then planned to use a computer program to churn through the thousands of possible pass codes until hitting upon the right one.

When Apple refused after weeks of discussions, prosecutors for U.S. Atty. Eileen Decker went to court, setting up the showdown.

In seeking the order from Pym, prosecutors argued that the All Writs Act gives a judge the authority to compel Apple to write the new code. The act, which was first passed by Congress in 1789 and updated periodically, is a sweeping legal tool that allows judges to issue orders if other judicial avenues are unavailable.

But Apple argued staunchly in its filing Thursday that the act cannot be used to compel the company to assist the FBI in this case, saying prosecutors pushed Pym to use “boundless and unbridled power.�

Though the act is intended to fill gaps in the country’s laws that could leave judges without the authority they need, it does not permit judges to make rulings that go beyond the limits of existing laws, Apple lawyers wrote. Congress, they went on, has recently considered passing legislation that would force companies such as Apple to write computer code at the government’s behest, but then rejected the idea.

Apple added that the government’s interpretation of the act would open the door for courts to compel other institutions, including those outside the tech industry, to perform tasks at the government’s behest.

“The government could argue that it should be permitted to force citizens to do all manner of things ‘necessary’ to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant, or requiring a journalist to plant a false story in order to help lure out a fugitive,� the motion read.

The company also argued that Pym’s order would violate the constitution’s 1st and 5th Amendments. Forcing Apple to write computer code, which courts have ruled is a type of speech, runs counter to the 1st Amendment’s ban on compelled speech, the lawyers wrote. The 5th Amendment, they added, protects companies from being forced into the government’s service.

In their filing, Apple lawyers urged Pym to find that her courtroom is not the proper venue for the debate over whether Apple and other companies can be forced to write software code for the government. That question, they wrote, should be decided by Congress.

UC Irvine Law School Dean Erwin Chemerinsky, an expert on constitutional law, said that though he did not believe Apple’s 1st Amendment argument was likely to sway a court, the company was on stronger ground objecting to the idea it can be required to create new software.

“The court has the power to subpoena what exists,� said Chemerinsky, who had not yet read Apple’s Thursday filing. “The court doesn’t have the power to subpoena what doesn’t exist, and I don’t think the court has that power under the All Writs Act.�

In previous cases, prosecutors typically sought orders against Apple in secret, filing their papers under court seal. This time, however, Decker made the move openly, leading to speculation that Justice Department officials saw the San Bernardino attack as their best chance to win both a public relations and legal battle over why Apple should be required to cooperate.

Justice officials have rebuffed the idea, going to pains to portray their request as a reasonable one that would have no effect beyond Farook’s phone.

Apple, in turn, has presented the court order as the precipice of a slippery slope. If the order is granted, Cook and others have argued, there is nothing to stop law enforcement officials in other cases from demanding the same. Hackers, as well, would work to steal the new code, leaving Apple’s signature encryption features useless, they add.

“The government says: ‘Just this once’ and ‘Just this phone.’ But the government knows those statements are not true,� Apple lawyers wrote in their filing. “If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent. Once the floodgates open, they cannot be closed.�

In comments Thursday at a hearing on national security, FBI Director James Comey acknowledged that his agency would want to continue to press Apple into service, saying “the judge’s decision, however it ends up, will be instructive for other courts.�

The FBI has asked the company for help opening 13 other devices in cases across the country.

With new encryption methods becoming more commonplace on consumer devices, Comey said, law enforcement agencies trying to solve terrorism and other types of crimes increasingly will not be able to access information they are authorized to see with a court order.

“This is the hardest question I’ve ever seen in government,� Comey told the House Intelligence Committee. The central question, he added, is “who do we want to be, and how do we want to govern ourselves?�

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