Apple issues are hardest he’s seen in government — Federal Bureau of Investigation chief

Microsoft on Monday pledged to file a court brief supporting Apple’s resistance to the FBI’s demand, and Facebook and Google indicated that they would the same by the deadline next week.

Apple offers a range of arguments in its motion to dismiss the order requiring it to help the Federal Bureau of Investigation access an iPhone belonging to one of the shooters in last year’s San Bernardino attacks.

“The government demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance”, Apple’s brief said.

“This is not a case about one isolated iPhone”.

Apple pointed to a 1994 law known as the Communications Assistance for Law Enforcement Act (CALEA), that it said “made clear that a company has no obligation” to assist the government in decrypting communications when “the company does not retain a copy of the decryption key”. “By forcing Apple to write software that would undermine those values…”

“The government says: “Just this once” and ‘Just this phone.’ But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts….”

“The government’s request here creates an unprecedented burden on Apple and violates Apple’s First Amendment rights against compelled speech”, Apple argued in a copy of the brief provided by the company on Thursday.

“Every case has implications for others”, Smith said at the hearing. “There may well be other cases that involve the same kind of phone and same kind of operating system”. In that case, federal prosecutors told the judge that they “don’t have an obligation to consult the intelligence community in order to investigate crime”. “Once the floodgates open, they can not be closed”.

“This is the only case in counsel’s memory in which an FBI Director has blogged in real-time about pending litigation, suggesting that the government does not believe the data on the phone will yield critical evidence about other suspects”, the company said.

Apple has asked a U.S. federal court to dismiss a court order for it to hack into a locked iPhone. Apple has backed Microsoft in that case, which is waiting on the ruling of an appellate court in NY.

“I don’t think it violates the First Amendment any more than compelling someone with a subpoena to testify violates the First Amendment”, Chemerinsky said. “It should be resolved by the American people”, Comey said.

Apple is on stronger ground arguing that the All Writs Act can not be used to force a party to produce something that doesn’t already exist, he said.

The Cupertino, California-based company said Thursday in its formal opposition to the order that it would have broad repercussions and “inflict significant harm – to civil liberties, society and national security – and would pre-empt decisions that should be left to the will of the people through laws passed by Congress and signed by the president”. But, he added, “The larger question isn’t going to be answered in the courts nor should it be”.