- The Washington Times - Thursday, February 25, 2016

In a much awaited court filing, Apple cut to the chase Thursday, accusing the FBI of violating its constitutional rights and seeking the ability “to undermine the basic security and privacy interests” of consumers by forcing the tech giant to hack into the iPhone of one of the deceased San Bernardino terrorists.

Apple is hoping to convince a California magistrate judge to reverse an earlier order that would compel the company to provide technical assistance to the FBI so that agents can attempt to break the four-digit password that protects the cellphone.

While Apple CEO Tim Cook previously criticized the ruling, a motion filed Thursday in court is the company’s first official response since the order was issued last week.

“No court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it,” wrote Apple attorneys in their motion, the latest filing in what is sure to be a closely watched court battle pitting digital privacy against national security concerns.

By forcing the company to create a “backdoor” into the encrypted iPhone, the government is degrading security features that protect everyday iPhone users’ data and laying a path that makes data more susceptible to hackers, identity thieves and unwarranted government surveillance, Apple attorneys argue. Doing so will also set precedent for law enforcement investigating any case — not just terrorism-related ones — to seek Apple’s help in decrypting a suspect’s iPhone.

“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,” Apple attorneys wrote. “Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote.”

The showdown between the FBI and Apple went public last week when California Magistrate Judge Sheri Pym approved a Justice Department request to force Apple to help the FBI hack the iPhone belonging to Syed Rizwan Farook, who with his wife, Tashfeen Malik, killed 14 people at his San Bernardino, California, workplace.

FBI investigators have been unable to access data on the phone because it is password-protected. They have asked Apple to disable a feature on the phone that automatically wipes all information off of the phone if an incorrect password is entered more than 10 times so that agents can try various password combinations until they crack it.

Apple attorneys lay at least part of the blame for investigators’ inability to extract data from the phone on the FBI itself, writing in their motion that the FBI changed the password on the iPhone’s Apple iCloud account without first consulting with Apple, “foreclosing the possibility of the phone initiating an automatic iCloud back-up of its data to a known Wi-Fi network.”

“Had the FBI consulted Apple first, this litigation may not have been necessary,” the attorneys wrote.

Hours before the motion was filed in court, FBI Director James B. Comey appeared before the House Intelligence Committee and acknowledged that the dispute over privacy versus national security raised by the Justice Department’s court battle with Apple is “the hardest question I’ve seen in government.”

“When I hear corporations saying we will take you to a world where no one can look at your stuff, part of me thinks that’s great,” Mr. Comey said. “I don’t want anyone looking at my stuff.”

But he worries about the long-term implications that encryption could have for law enforcement investigations, and said he felt it was the FBI’s responsibility to warn lawmakers and the public about the potential consequences if investigators are left in the dark when it comes to the digital communication of suspected criminals. Law enforcement officials often rely on court orders and search warrants to gain access to suspects’ cellphones, but he said if they can’t access data on the devices, it becomes increasingly more difficult to investigate crimes.

“So if we’re going to move to a world where that is not possible anymore, the world will not end, but it will be a different world than where we are today and where we were in 2014,” Mr. Comey said.

A hearing is set in the case for March 22, but neither side sees a ruling in this case as the end of the matter.

In its motion, Apple questioned the Justice Department’s motive in taking the fight to court rather than asking legislators to craft new laws that would dictate a protocol for these types of scenarios.

“Rather than pursue new legislation, the government backed away from Congress and turned to the courts, a forum ill-suited to address the myriad competing interests, potential ramifications, and unintended consequences presented by the government’s unprecedented demand,” Apple attorneys wrote.

Legislation does appear to be on the way. Senators Richard Burr, a North Carolina Republican, and Dianne Feinstein, a California Democrat, have indicated they are drafting a proposal that would prevent U.S. companies from refusing to comply with court orders to turn over data to law enforcement. 

Mr. Comey said whatever the outcome of this particular legal battle, he foresees a need for a solution to the broader questions at hand. 

“I think conversation and negotiation is the key to resolving this,” he said. 




 

• Andrea Noble can be reached at anoble@washingtontimes.com.

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