Apple calls FBI iPhone request ‘unprecedented’ in court filing

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By Dan Levine and Joseph Menn

Apple Inc (AAPL.O) on Thursday struck back in court against a U.S. government demand that it unlock an encrypted iPhone belonging to one of the San Bernardino shooters, arguing such a move would violate its free speech rights and override the will of Congress.

The high-stakes fight between Apple and the government burst into the open last week when the U.S. Federal Bureau of Investigation obtained a court order requiring Apple to write new software and take other measures to disable passcode protection and allow access to shooter Rizwan Farook’s iPhone.

The clash has driven to the heart of a long-running debate over how much law enforcement and intelligence officials should be able to monitor digital communications.

Arguing that the court should throw out the order that it issued last week, Apple said in its brief on Thursday that software was a form of protected speech, and thus the Justice Department’s demand violated the constitution.

“The government’s request here creates an unprecedented burden on Apple and violates Apple’s First Amendment rights against compelled speech,” it said.

Apple also contended that the court was over-stepping its jurisdiction, noting that Congress had rejected legislation that would have required companies to do the things the government is asking Apple to do in this case.

“No court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it,” Apple said in its filing.

The government argues that the All Writs Act, a broad 1789 law which enables judges to require actions necessary to enforce their own orders, compels Apple to comply with its request.

But Apple argued in its filing that prosecutors wrongly applied a key U.S. Supreme Court case, which involved a telephone company, to the San Bernardino situation. Since Apple is not a utility, and because Congress declined to force companies like Apple to build “backdoors” into their products, Apple said it should not be forced to help the government hack into the San Bernardino iPhone.

The Justice Department won the order from the federal court in Riverside, California last week, without the company present. The judge allowed Apple to respond in the brief on Thursday, and a hearing is scheduled for next month.

Some of the largest tech companies appear to be lining up behind Apple. Google and Facebook will both file briefs supporting the iPhone maker, said several sources familiar with the matter who were not authorized to speak publicly about it. Microsoft will file a friend-of the-court brief as well, company President Brad Smith said in congressional testimony Thursday. Twitter also said it will sign a brief in support of Apple.

In a statement responding to Apple’s filing, the Justice Department said its approach to prosecuting crimes has not changed.

“The change has come in Apple’s recent decision to reverse its long-standing cooperation in complying with All Writs Act orders,” department spokesperson Melanie Newman said.

While much of Apple’s argument is that the All Writs Act does not apply, the free speech and due process claims could prove helpful if the company wants to attract the attention of the Supreme Court, said Jill Bronfman, director of the Privacy and Technology Project at University of California Hastings College of the Law.

“It always does help to mention the Constitution,” she said.

 

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