In a stinging rebuke to
Apple, federal prosecutors contended Friday
that the tech giant is “not above the law”
and could easily help the government unlock
a terrorist’s iPhone without undermining
anyone else’s privacy.
“Rather than assist the
effort to fully investigate a deadly
terrorist attack,” government lawyers said,
Apple “has responded by publicly
repudiating” a court order demanding the
Apple's fight with the
FBI has readers divided
The court filing portrayed
the conflict as a battle between FBI agents
working to obtain key information about a
terrorist plot that killed 14 people and
injured 22 in San Bernardino in December and
a private company wishing to protect its
reputation and brand.
In a motion to compel
Apple’s help, prosecutors also accused the
company of making misleading statements.
“The order does not, as
Apple’s public statement alleges, require
Apple to create or provide a ‘back door’ to
every iPhone,” the filing said. “It does not
provide ‘hackers and criminals’ access to
iPhones … and it does not give the
government ‘the power to reach into anyone’s
device’ without a warrant or court
Prosecutors said the
software that law enforcement wants Apple to
write could be kept in the custody of Apple
and would not have to be shared with others.
“No one outside Apple
would have access to the software required
by the order unless Apple itself chose to
share it,” the government said.
Prosecutors also insisted
that the order seeking Apple’s assistance
reflected a central principle in American
law that citizens can be called upon to help
law enforcement. Indeed, the motion argued,
some technology companies have been required
to write some amount of software to comply
with subpoenas in other cases.
“Apple’s current refusal
to comply with the court order’s order,
despite the technical feasibility of doing
so, instead appears to be based on its
concern for its business model and public
brand marketing strategy,” prosecutors
The government also argued
that the law can compel someone to provide
something that didn’t previously exist.
Prosecutors cited the case of a defendant
whose computer was encrypted. He was ordered
to help the government produce a copy of the
unencrypted contents of the computer, the
In response, senior Apple
executives, speaking on the condition of
anonymity, said Friday's government motion
was redundant and aimed at applying more
public pressure on the company so that it
would give in.
The executives said they
had no intention of backing down,
reiterating that their position was in the
best interest of its customers and the
One of the executives,
also speaking on condition of anonymity,
said Friday that the government’s request
for software to change the iPhone’s
operating system would take the company
several weeks or months to develop and
validate. It would not involve a mere matter
of hours or days, he said.
The executive also
disputed the government’s argument that only
the terrorist’s iPhone would be affected by
the court order.
If Apple complied with the
order, prosecutors around the country would
ask for the same technology, the executive
So far, only the U.S. has
asked Apple to undertake such an endeavor,
the executive added, but other countries
would surely follow if federal prosecutors
succceed in this case.
The phone that needs to be
unlocked may contain critical communications
that the FBI has been unable to recover
elsewhere, the government filing said.
The FBI wants to hack into
that Apple iPhone 5C, which was issued to
shooter Syed Rizwan Farook by his employer,
the San Bernardino County Department of
Health. Farook and his wife, Tashfeen Malik,
died in a firefight with police hours after
analysts fear the precedent of Apple
complying with the order. Once Apple does
this in this case, the government will
request it again and again, they said.
Prosecutors sought to
downplay the issue of encryption technology
in the terror case, arguing that the
software it’s seeking from Apple amounts to
an innocuous update.
It would make it easier
for the FBI to guess Farook’s passcode by
ensuring a couple of settings are turned
off, including one that would wipe the
phone’s contents in the event of 10
incorrect unlock attempts. The company
regularly issues updates that modify
settings, the court filing said.
With Farook dead and his
employer, which owns the iPhone, consenting
to the search, the requested software would
not invade anyone’s privacy and wouldn’t
undermine encryption, prosecutors contend.
“This court should not
entertain an argument that fulfilling basic
civic responsibilities of any American
citizen or company -- complying with a
lawful court order -- could be obviated
because that company prefers to market
itself as providing privacy protections that
make it infeasible to comply with
court-issued warrants,” prosecutors said.
The Justice Department
also reiterated its stance that Apple has
the means to fulfill the court order. As of
Wednesday, the company was still weighing
how complicated it would be to develop a
tool for the FBI.
“At no point has Apple
ever said that it does not have the
technical ability to comply with the order,
or that the order asks Apple to undertake an
unreasonable challenging software
development task,” prosecutors wrote Friday.
“On this point, Apple’s silence speaks
Meanwhile, prosecutors and
senior Apple executives disclosed Friday
that the company in early January provided
four alternatives to access data from the
But one of the most
encouraging options was ruled out because
the phone’s owner, presumably the San
Bernardino County Department of Health,
reset the password to Farook’s iCloud
account within 24 hours of the attack to
access data from the backup. The iCloud
password on the iPhone itself is now wrong,
and it won’t back up unless someone can get
past the phone’s passcode and change it.
The issue was discovered
after Apple engineers sent to Southern
California to work with the FBI struggled to
trigger an automatic backup. When iCloud is
enabled, iPhones automatically sync with the
cloud if charging and connected to a
familiar Wi-Fi network.
Prosecutors still contend
that unlocking the iPhone is critical
because some data doesn’t sync to iCloud.
The FBI has retrieved Farook’s iCloud
backups up to Oct. 19, about six weeks
before the attack, and have suggested that
he deliberately disabled the feature.
Apple executives and
Jonathan Zdziarski, one of the top experts
on iPhone security, said other issues could
have cropped up and that the FBI’s assertion
may not be true. An iPhone operating system
update on Oct. 21 could have disrupted
iCloud settings, the iCloud storage space
could have been full or Farook may never
have returned to a location where the
auto-backup would have been activated.
Zdziarski said Apple may
be able to reset the iCloud password so that
it matches the one saved on the iPhone;
Apple didn’t immediately comment.
Dolan reported from San
Francisco and Dave from Los Angeles.