The war of words between Apple and the FBI over the locked iPhone used by one of the San Bernardino shooters continues to rage on. About two weeks after Apple filed a motion detailing a myriad of reasons why they refuse to help the FBI hack into the iPhone, the government today filed its own response brief, similarly peppered with colorful language and bold accusations.
For starters, the brief (originally spotted by The Verge) scoffs at the notion that Apple complying with the FBI’s request would pose an undue burden on the company, an issue Apple raised not too long ago.
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“By Apple’s own reckoning, the corporation—which grosses hundreds of billions of dollars a year—would need to set aside as few as six of its 100,000 employees for perhaps as little as two weeks,” the filing reads in part. “This burden, which is not unreasonable, is the direct result of Apple’s deliberate marketing decision to engineer its products so that the government cannot search them, even with a warrant. “
Echoing a point the FBI keeps trying to hammer home, the brief makes a point of noting that the FBI’s request in this case would only pertain to a single iPhone. Apple, meanwhile, has argued that this case could set a precedent and thus set the table for other law enforcement agencies to demand that Apple write tailor-made software intended to spy on specific individuals.
The Court’s Order is modest. It applies to a single iPhone, and it allows Apple to decide the least burdensome means of complying. As Apple well knows, the Order does not compel it to unlock other iPhones or to give the government a universal “master key” or “back door.” It is a narrow, targeted order that will produce a narrow, targeted piece of software capable of running on just one iPhone, in the security of Apple’s corporate headquarters. That iPhone belongs to the County of San Bernardino, which has consented to its being searched. The phone was used by the now-dead terrorist Syed Rizwan Farook, who also consented to its being searched as part of his employment agreement with the County. In short, the Order invades no one’s privacy and raises no Fourth Amendment concerns.
The brief also intends to portray Apple’s arguments pertaining to user privacy and national security as nothing more than a smokescreen intended to distract the masses from what this case is truly about – discovering any relevant evidence stored on Farook’s phone.
Apple and its amici try to alarm this Court with issues of network security, encryption, back doors, and privacy, invoking larger debates before Congress and in the news media. That is a diversion. Apple desperately wants—desperately needs—this case not to be “about one isolated iPhone.” But 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. And under the compelling circumstances here, the Court should exercise that authority, even if Apple would rather its products be warrant-proof.
This case—like the three-factor Supreme Court test on which it must be decided— is about specific facts, not broad generalities. Here, Apple deliberately raised technological barriers that now stand between a lawful warrant and an iPhone containing evidence related to the terrorist mass murder of 14 Americans. Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden. Under those specific circumstances, Apple can be compelled to give aid. That is not lawless tyranny. Rather, it is ordered liberty vindicating the rule of law.
What’s more, the DOJ also paints Apple’s arguments as extremely harmful.
“Apple’s rhetoric is not only false,” the filing reads, “but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government.”
The full filing can be read in its entirety below.
Government Response to Apple Motion by Jordan Golson
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