DOJ Motion May Put Apple in No-Win Position by Resisting iPhone Order

NEWS ANALYSIS: A new U.S. Department of Justice motion reveals why Apple may be treading on weak legal ground in its resistance to a court order to help unlock an iPhone used by the suspect in a Dec. 2 mass shooting.

DOJ Apple Motion

A surprise filing by the U.S. Department of Justice shows Apple may be treading on weak legal grounds in its efforts to resist a court order that it help investigators unlock an Apple iPhone 5C used by Syed Farook in a mass shooting Dec. 2 in San Bernardino, Calif.

The filing on Feb. 19 was a surprise because Apple still has nearly a week to respond to a court order that it help the FBI gain access to the phone. However, a hearing on the DOJ's new motion is set for March 22.

The motion to compel Apple to comply with the Feb. 16 court order lays out the government's arguments to rebut Apple CEO Tim Cook's statements that the company would not cooperate with the court order to bypass the iPhone's security. In fact, the government's motion attempts to counter Cook's statements point by point, and even includes his letter to Apple's customers as its only exhibit.

But the government's motion does a lot more than simply say Cook is wrong. The government also calls into question the veracity of Cook's assertions. For example, the government says in the filing that there is no truth to the claims that it wants Apple to create a back door, or to provide software to allow the government to break into any iPhone.

The DOJ motion says that all the FBI wants is to turn off the feature that will automatically erase the contents of the phone after 10 wrong tries of the pass code.

By turning off the auto-erase feature, the government can then use a brute-force method to break into the phone by simply trying every possible combination of characters until it achieves success. Once the government determines the pass code, the device's encryption will become irrelevant.

The government also points out that the iPhone in question was actually the property of San Bernardino County and was issued to Farook as part of his job. This means that any information on the phone is legally the property of the county government, not of Farook. The county government has given the FBI permission to access the iPhone.

Equally important, the FBI has been able to track the calls made to and from the phone during the month and a half before the attacks and after Farook apparently disabled the iCloud backup on the phone. Investigators found that at least some of them were to his co-conspirator and wife Tafsheen Malik, and to several of the victims of the attack.

What the FBI is trying to find are any messages or other data that would fill in missing information about the attacks. While the government doesn't say this, the chances are high that the FBI would also like to see any location data collected by the iPhone, especially during the critical time between the shootings and when the suspects were confronted and killed by police.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...