The Justice Department struck back at Silicon Valley’s outpouring of support for Apple Inc., reasserting its claim that forcing the company to help unlock a terrorist’s iPhone is legal.
Last week, Amazon, Google, and Microsoft were among the dozens of technology companies that decried what they called an unprecedented expansion of government power that endangers the privacy of hundreds of millions of people. The Justice Department on Thursday tried to narrow the focus back to the iPhone 5c used by a San Bernardino County employee who, with his wife, murdered 14 at a holiday work party and died about four hours later in a police shootout.
Federal prosecutors won a court order on Feb. 16 requiring the company to help the FBI bypass the phone’s security features to access encrypted data. The US, arguing the phone could provide critical information, seeks to undermine claims by Apple and its tech industry chorus that the order should be reversed. Prosecutors contend that the cooperation they’re seeking isn’t different in nature than what courts have ordered Apple and other companies to provide in the past.
“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,” prosecutors said in the filing. “Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden.”
Apple and companies normally competing against it argue that the Justice Department, in trying to force the iPhone-maker to create a back door to the iPhone’s security features, is claiming an authority that Congress has deliberately refused to grant it.
The magistrate judge in Riverside, Calif., who directed Apple to help the FBI unlock the phone used by Syed Rizwan Farook in the December 2 attack that also wounded 22, is set to consider at a March 22 hearing whether to leave that order in place.
Last month, Apple won a victory in a similar case in Brooklyn, N.Y., where a magistrate judge ruled the government can’t force Apple to unlock the iPhone of a drug dealer. The US has appealed that ruling to a district judge and whoever loses in the Riverside case is expected to appeal, too.
In both in the Riverside and the Brooklyn cases, the underlying question is whether an 18th Century US law allowing judges to issue orders in unusual situations where no specific law applies, can be used to make Apple unlock an iPhone that was seized under a search warrant. Apple and its supporters argue that the Justice Department can’t rely on the 1789 All Writs Act because the reason there’s no law forcing companies to help the US access encrypted information is that Congress has refused to create one.