Apple on Tuesday said the nation’s Founding Fathers “would be appalled” by the way the Department of Justice has interpreted a 227-year-old statute in its attempt to access data stored on an iPhone owned by San Bernardino terrorist Syed Farook.
The tech company submitted its final brief before it’s slated to argue in District Court next Tuesday in California. In the 33-page filing, Apple’s attorneys wrote that “sweeping implications” will arise if Apple is forced under the All Writs Act to help investigators unlock a phone recovered from Farook, who with his wife went on a shooting rampage that killed 14 last year.
Attorneys for the Justice Department invoked the All Writs Act last month when they asked a judge to compel Apple for help since authorities have been unable to bypass security features Farook had enabled on his iPhone.
Apple said providing the assistance sought by investigators would involve creating a whole new operating system, running afoul of its right to free speech while also putting the security and privacy of hundreds of millions of customers at risk by introducing a system designed to be exploited.
“The Justice Department and FBI are seeking an order from this Court that would force Apple to create exactly the kind of operating system that Congress has thus far refused to require. They are asking this Court to resolve a policy and political issue that is dividing various agencies of the Executive Branch as well as Congress. This court should reject that request, because the All Writs Act does not authorize such relief, and the Constitution forbids it,” Apple’s attorneys wrote this week.
The Justice Department has repeatedly cited a 1977 Supreme Court case in which the New York Telephone Co., a private business, was ordered under the All Writs Act to give the FBI “all information, facilities and technical assistance” necessary to conduct surveillance on a criminal suspect.
Apple, however, said the government is attempting to use the statute “as an all-powerful magic wand rather than the limited procedural tool it is.”
“According to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up. The founders would be appalled,” Apple attorneys wrote this week.
“Under the government’s view, the state could force an artist to paint a poster, a singer to perform a song or an author to write a book, as long as its purpose was to achieve some permissible end, whether increasing military enrollment or promoting public healthy.”
“In this case, the government’s motivations are understandable, but its methods for achieving its objectives are contrary to the rule of law, the democratic process and the rights of the American people. The court should vacate the order and deny the government’s motion to compel,” Apple concluded.
Nate Cardozo, a staff attorney with the Electronic Frontier Foundation — a digital rights group that has filed a court brief in support of Apple — told Forbes that Tuesday’s response from Apple “demolishes” the government’s case and “systematically takes down almost every one of the government’s arguments.”
Emily Pierce, a Justice Department spokeswoman, told Reuters that the government looks forward to making their argument next week in court.
“As we have said in our filings, the Constitution and the three branches of the federal government should be entrusted to strike the balance between each citizen’s right to privacy and all citizens’ right to safety and justice,” she said.
Investigators believe Farook’s iPhone may contain evidence concerning last year’s tragedy in San Bernardino and potentially other terror plots. He and his wife, Tashfeen Malik, died after the rampage during a shootout with police.
• Andrew Blake can be reached at ablake@washingtontimes.com.
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