Apple says U.S. 'Founders would be appalled' by DOJ order

Apple says U.S. 'Founders would be appalled' by DOJ order

Kevin Johnson and Elizabeth Weise, USATODAY 8:08 p.m. EDT March 15, 2016

SAN FRANCISCO — Apple Inc. charged Tuesday that a court order forcing the tech giant to assist the federal government in unlocking the iPhone of San Bernardino terrorist Syed Farook was based on non-existent authority asserted by the Justice Department.

"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,'' Apple lawyers argued in new court documents. "The Founders would be appalled.''

The company rejected the government's previous contention, characterizing the court order as "modest'' and relating to a "single iPhone.''

"Instead, this case hinges on a contentious policy issue about how society should weigh what law enforcement officials want against the widespread repercussions and serious risk their demands would create,'' Apple lawyers argued.

With each new filing in advance of a scheduled March 22 court hearing on the matter, the rhetoric has dramatically escalated while the substance of the dispute has largely never changed: Apple claims that the court's order would represent an unprecedented breach of customer privacy, while the government counters that its request is narrow in scope and that national security interests trump whatever privacy claims can be asserted involving access to Farook's phone.

"This case arises in a difficult context after a terrible tragedy,'' Apple contends. "But it is in just such highly-charged and emotional cases that the courts must zealously guard civil liberties and the rule of law and reject government over-reaching.''

Apple's new court filing comes less than a week after the Justice Department claimed that Apple had "deliberately raised technological barriers'' between a warrant and the iPhone that authorities believe may contain additional evidence in the December mass shooting that left 14 dead.

"We look forward to responding to Apple's arguments before the court on March 22,'' Justice spokeswoman Emily Pierce said Tuesday. "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. The Constitution and the laws of the United States do not vest that power in a single corporation.”

Apple CEO Tim Cook has called the request akin to creating a "backdoor" into the iPhone, and the company's lawyers claimed Tuesday in court documents that the government's requested order was "neither grounded in the common law nor authorized by statute.''

"The government, nevertheless, contends that because this court issued a valid search warrant (to review contents of the seized iPhone), it can order innocent third parties to provide any service the government deems necessary or appropriate to accomplish the search,'' the company contended Tuesday.

The high-stakes dispute between Apple and the government was set in motion a month ago when a federal magistrate in California ordered the company to assist the FBI in gaining access to Farook's seized phone.

FBI Director James Comey has said that all options available to the government, short of seeking the company's help, have been unsuccessful in devising a way past the phone's locking function.

Speaking to Bloomberg News ahead of the filing, Apple counsel Ted Boutrous said Apple's response would "walk through the facts in the law and show why the government is asking for something that no federal court has ever granted," he said.

Overall the tech world has come down strongly in Apple’s camp. Among people who work in the IT and security industries, 63% support Apple and do not believe that it should comply with the FBI by unlocking the phone, according to a survey conducted bythe security firm AlienVault.

However, a survey by the Pew Research Center last month found that 51% of Americans say Apple should be forced to unlock the phone while 38% said it should not.

Johnson reporting from Washington DC, Weise from San Francisco.


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