Government: Apple Creating 'Barriers' to Accessing Terrorist's iPhone

RIVERSIDE COUNTY, CA - Federal prosecutors this week excoriated tech software giant Apple for standing in the way of a court order directing the company to unlock the iPhone owned by one of the terrorists responsible for killing 14
people in San Bernardino last December.

"There is probable cause to believe there is evidence of a terrorist attack on that phone, and our legal system gives this court the authority to see that it can be searched pursuant to a lawful warrant,'' the U.S. Attorney's
Office wrote in response to a request by Apple Inc. to have a court order issued on Feb. 16 voided.

A hearing on the matter is set for March 22 at U.S. District Court in Riverside.

The All Writs Act directive signed last month by U.S. Magistrate Sheri Pym stemmed from FBI agents' inability to access the phone belonging to 28-year-old Syed Rizwan Farook, who along with his wife, 27-year-old Tashfeen Malik,
killed 14 people and wounded 22 others at the Inland Regional Center on Dec. 2.

• Previous: Should Apple Help FBI Unlock Terrorist's Phone? They Say No

Farook worked for the San Bernardino County Department of Environmental Health, and the iPhone was issued to him by the county. Federal investigators believe the device may contain key details related to the Islamist-motivated
terrorist attack.

FBI decoders have had no luck de-crypting the iPhone, which was seized from Farook's black Lexus IS300 soon after he and his wife were killed in a shootout with police.

Apple contends the government is trying to compel it to create a "backdoor'' system -- essentially a new technology -- to penetrate the phone's data bank without triggering an auto-wipe feature that could obliterate its contents, an unprecedented move the company said would "inflict significant harm to civil liberties, society and national security.''

According to the software maker, by putting its employees directly in the service of the FBI, "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.''

"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 defendants' brief states.

Apple's attorneys challenged use of the All Writs Act, enacted in 1789 and refined once in 1949, to compel the company to do the government's bidding, saying the law is an inadequate justification for the company to create a
"master key'' for accessing its proprietary technology.

But the U.S. Attorney's Office called the court's order "modest'' and a simple step toward producing "a narrow, targeted piece of software capable of running on just one iPhone'' -- the passcode to which Farook took to his
grave. Prosecutors noted that the All Writs Act had been applied multiple times before, including for the deciphering of encrypted data belonging to New York Telephone Co. in the late 1970s.

"Like Apple, the telephone company argued that ... relying on the AWA was a dangerous step down a slippery slope ending in arbitrary police powers,'' according to their court papers. "The Supreme Court dismissed this argument.
In the 40 years since that decision, it has become clear that the court was correct, because those fears have proved unfounded.''

Prosecutors wrote that "the government and the community need to know what is on the terrorist's phone, and the government needs Apple's assistance to find out.''

The U.S. Attorney's Office deemed Apple's recalcitrance "corrosive of the very institutions that are best able to safeguard our liberty and our rights.''

The government's brief insisted there are "compelling facts (that) justify ordering Apple to remove the barriers to executing a warrant for an iPhone used by a terrorist who carried out mass murder.''

Prosecutors in a Brooklyn, New York, search warrant case involving Apple last year guessed that the company had complied with data de-cryption requests in 70 cases, though Apple put the figure at closer to 20 and argued
those instances did not involve the kind of deep device probing now at issue.

Apple's attorneys also assert that the company is not a public utility, and therefore doesn't have the same obligations as telecommunication carriers that might be subject to searches initiated under an All Writs Act order.
However, the government counters in its brief that the software developer has "deliberately developed its phones so that Apple alone holds the means for courts' search warrants to be carried out.''

"Apple intentionally and for commercial advantage retains exclusive control over the software that can be used on iPhones, giving it monopoly-like control over the means of distributing software to the phones,'' prosecutors wrote. "Having established suzerainty over its users' phones -- and control over the precise features of the phones necessary for unlocking them -- Apple cannot now pretend to be a bystander, watching this investigation from afar.''

The case has ignited a firestorm, drawing a virtual Who's Who of Silicon Valley into the fray on Apple's side and numerous law enforcement organizations onto the side of the FBI and U.S. Attorney's Office.

Linkedin Corp., Mozilla, Twitter Inc., Reddit Inc., Yahoo, Google, Facebook, Cisco Systems and eBay.com -- to name only a few -- have filed amicus briefs on behalf of the plaintiffs, with the support of the ACLU and others.

The California Peace Officers' Association, the Federal Law Enforcement Officers' Association, the California State Sheriffs' Association and the California Police Chiefs' Association have all expressed support for the government's position.

Full Patch coverage of the California mass shooting:

• RivCo Has Strong Connection to San Bernardino Shootings
• Victims Identified in San Bernardino Mass Shooting
• Investigators Sort Through 3 Crime Scenes in California’s Deadly Mass Shooting
• Day After California Massacre, San Bernardino Residents Trapped in Homes
• Valley Village Father of 6 Killed in San Bernardino Massacre
• California Mass Shooting: What We Know About Syed Rizwan Farook and Tashfeen Malik
• 2015 ‘Mass Shootings’ In The United States: More Than One A Day
• ‘Moment of Silence’ at DC Tree Lighting for Mass Shooting Victims
• How You Can Help Survivors of the San Bernardino Mass Shooting
• Obama: Motives Unknown, But Action Needed After San Bernardino Mass Shooting
• Investigators Try to Determine If San Bernardino Attack Is Terrorism or Workplace Rampage

--City News Service/Photo credit: Renee Schiavone