DOJ: Apple’s arguments in San Bernardino case ‘corrosive’

The Department of Justice on Thursday accused Apple of willfully obstructing the FBI’s efforts to access the iPhone of San Bernardino shooter Syed Rizwan Farook, in what appeared to be an escalation of the simmering legal battle.

{mosads}”The government and the community need to know what is on the terrorist’s phone and the government needs Apple’s assistance to find out,” prosecutors wrote in a new motion urging a federal judge in California to force Apple to comply with its demand.

Magistrate Judge Sheri Pym last month ordered Apple to build a piece of software disabling a security feature on the phone to allow investigators to hack into it. Apple has opposed the order with its own motion to vacate, claiming that the government’s request would set a dangerous precedent and undermine users’ privacy.  

The tech giant argues that forcing it to create new software that doesn’t already exist and which it considers harmful would inappropriately broaden the scope of the law on which the government is basing its case.

Apple has primarily cast its decision to oppose the California court order as a defense of privacy rights — a position the Justice Department pushed back against in its filing.

“Apple’s rhetoric is not only false, 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,” prosecutors wrote.

Apple officials on Thursday were quick to denounce the government’s filing, claiming that the Justice Department’s arguments were “deeply offensive,” “demeaning” and part of an “unsubstantiated effort to vilify Apple.”

“In 30 years of practice I don’t think I’ve ever seen a legal brief that was more intended to smear the other side with false accusation and innuendo and less intended to focus on the real merits of the case,” Bruce Sewell, Apple senior vice president and general counsel, told reporters on a conference call.

“I can only conclude that the DOJ is so desperate at this point that has thrown all decorum to the winds.”

The Justice Department has consistently argued that its requests are tailored to the individual phone and necessary to its investigation into the December shooting.

The 18th-century law that the government is attempting to use to force Apple to disable the security feature, known as the All Writs Act, allows federal judges to compel others to help the government perform its duties so long as requests are not “unduly burdensome.” Prosecutors have claimed that Apple’s refusal to help “appears to be based on its concern for its business model and public brand marketing strategy.”

“By Apple’s own reckoning, the corporation — which grosses hundreds of billions of dollars a year — would need to set aside as few as six of its 100,000 employees for perhaps as little as two weeks,” Thursday’s DOJ filing reads. “This burden, which is not unreasonable, is the direct result of Apple’s deliberate marketing decision to engineer its products so that the government cannot search them, even with a warrant.”

The Justice Department also accused Apple of making “special accommodations” to give user information to officials in China, while refusing similar efforts in the U.S.

“Such accommodations provide Apple with access to a huge, and growing, market,” government lawyers argued in their Thursday filing. 

“If Apple can provide data from thousands of iPhones and Apple users to China and other countries, it can comply with the [All Writs Act] in America.”

Sewell, Apple’s top lawyer, claimed that the government’s “speculation” was “based on no substance at all.”

“We would never do the same, but imagine Apple asking the court whether the FBI could be trusted because ‘There is this real question about whether J. Edgar Hoover supported the assassination of Kennedy’ — see ConspiracyTheory.com as our supporting evidence,” he said.

Apple has argued in a separate but similar case involving the phone of a convicted drug trafficker that the government’s requests that it help unlock the device did constitute an undue burden on the company.