FBI chief: Apple issues are hardest he’s seen in government

The policy issues raised in the Justice Department’s dispute with Apple Inc. over a locked iPhone represent the “hardest question I’ve seen in government, and it’s going to require negotiation and conversation”, FBI Director James Comey said Thursday.

Experts told the newspaper that Congress needs to step in and clarify whether Apple is obliged to hand over the data from Farook’s phone, before the company makes it technically impossible to do so. It has got the court to order Apple to write a version of iOS without the features that prevent unlimited passcode guessing and increasing time intervals between guesses so it can use brute force methods to guess the passcode.

It said the government’s request violated the company’s Fifth Amendment right to be free from “arbitrary deprivation of its liberty by government”.

Apple’s legal arguments essentially fall into four categories: that the demand violates the First Amendment by forcing the company to write the software to hack the phone, a form of “compelled speech;” that it violated Apple’s due process rights; that the requests place an unprecedented burden on the company, forcing it to create a separate apparatus to create a “brute force tool” for the Federal Bureau of Investigation to hack phones, particularly with the possibility similar government requests will proliferate; and that the law being used to require the help simply can’t be used for that objective. But Apple argues that in this case, given the uncertain value of what’s on the iPhone, the investigators failed to prove a compelling state interest in getting into the device and so lack a constitutional reason to compel Apple to speak – especially when the “speech” (aka code the company would write) is in direct opposition to Apple’s public stance in favor of encryption and security. CEO Tim Cook has on multiple occasions boasted that the company’s system is so secure that they themselves can not access customer data.

The Justice Department is proposing a “boundless interpretation” of the law that, if left unchecked, could bring disastrous repercussions for digital privacy, the company warned in a memo submitted to Magistrate Sheri Pym.

“The government says: “Just this once” and ‘Just this phone, ‘ ” the motion notes.

The government has argued that its request is for this one iPhone alone, and it wouldn’t create vulnerabilities for the millions of other iPhones.

Later asked whether Apple would be prepared to fight this case all the way to the U.S. Supreme Court, Cook said, “We would be prepared to take this issue all the way”.

And it accused the government of working under a closed courtroom process under the auspices of a terrorism investigation of trying “to cut off debate and circumvent thoughtful analysis”.

In real terms, Apple would likely need to update its hardware and software.

An FBI spokesman did not immediately respond to a request for comment. “The Justice Department’s approach to investigating and prosecuting crimes has remained the same; the change has come in Apple’s recent decision to reverse its long-standing cooperation in complying with All Writs Act orders”, Newman said.

March 15: After assessing the government’s response, Apple has to file its final reply.

March 22: Attorneys for Apple and the government will appear in a District Court in Riverside, California at 1 p.m. PT. They will both argue their cases to a magistrate-judge, who will rule shortly after.