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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.
DOJ Motion May Put Apple in No-Win Position by Resisting iPhone Order
The DOJ filing also rebuts some specific claims made by Cook, including claims that the government may misuse any software used to modify the phone’s settings or to retrieve the phone’s information. “The software requested would not reside permanently on the subject device and Apple can retain control over it entirely,” the motion says.
“Moreover, to the extent that Apple has concerns about turning over software to the government so that the government can run the passcode check program, the Order permits Apple to take possession of the subject device to load the program in its own secure location, similar to what Apple has done for years for earlier operating systems, and permit the government to make its passcode attempts via remote access,” the motion said in response to Cook’s stated concerns.
The motion makes a couple of other noteworthy points. One is that the government makes clear that Apple has helped obtain other information in this and other cases already without balking. Also, there is significant precedent in other cases where the courts have issued warrants for access to data stored on cell phones, and Apple and other phone makers have complied.
The government contends that what’s really at stake is Apple’s marketing and business plans rather than any interest in protecting users against government intrusion. In this case, the user, Farook, is dead and in any case he wasn’t the owner of the phone or the data, which belonged to the county government.
So what’s really at stake here? I suspect that what Apple is really worried about is China. Apple has been able to tell its Chinese customers that the government can’t access their data, and that it’s safe from intrusion. Now Apple may have to eat its words because it will have demonstrated that it can indeed grant access to those locked iPhones.
But it may also be true that what Apple really needs is to be forced into providing the access so that the company isn’t seen as providing the access willingly. In that case, what we really are witnessing is political theater being played out so the government can look tough and Apple can be shown not to be a willing partner.
If the latter is the case, then it could be obvious on March 22 when the hearing takes place if the court tells Apple to obey the order or else and then does so. But if that’s not the case, then March may mark the beginning of a difficult time for the company when its CEO gets charged under a selection of criminal statutes, and that’s not a scenario that is likely to end well.