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By Miriam Raftery

February 27, 2016 (Washington D.C.) – In a case that pits privacy rights against security concerns, Apple has asked U.S. District judge to dismiss a court order requiring Apple to assist the Federal Bureau of Investigation (FBI) in hacking an iPhone owned by the terrorists who massacred 14 people in San Bernadino. 

The FBI wants Apple to write code that would enable investigators, with a search warrant, to “try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly,” FBI director James Comey wrote on Lawfare Blog. 

Comey insists the legal issue is narrow. “We don’t want to break anyone’s encryption or set a master key loose on the land,” he says. Comey maintains that the phone could provide clues to help find more terrorists and that the FBI seeks Apple’s help to bring justice to the 14 people killed by the terrorists and others who were injured.

But Apple’s attorney Mark Zwillinger wrote in a brief filed with the court, “This is not a case about one isolated iPhone.  Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.”

The FBI relies on the All Writs Act from 1789 for its argument that federal courts and compel third parties to help execute court orders such as search warrants. The Supreme Court has acknowledge some limits to that act, for instance, ruling the such an order cannot impose an unreasonable burden on a third party.

Apple claims the government’s demand would be an unreasonable burden.  “If Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user?” Apple asks in its brief. 

Apple also claims First Amendment free speech protections, since courts have held that code is speech protected constitutionally.  Apple also asserts Fifth Amendment protections, claiming that by conscripting a private party with only a tenuous connection to a crime, the government would violate due process and the company’s right to be free of “arbitrary deprivation of liberty by government.”

The company also argues that if forced to create software that enables hacking of iphones, it would open up the door to hackers and also risk the “security, safety, and privacy of customers whose lives and chronicled on their phones.”

The government has until March 10 to respond to Apple’s filing to dismiss the order. Oral arguments are sets for March 22 in U.S. District Court of Central California.  If the judge rules for the government and Apple refuses to comply, it could face enormous fines.  But Apple has indicated it plans to fight the case all the way to the U.S. Supreme Court if necessary. reports that Apple has hired attorney Ted Olson to help on its case—the lawyer who represented George W. Bush win the historic Bush v. Gore  case that awarded Bush the presidency after the disputed 2000 election.

FBI Director Comey observes, rightly, that the case highlights the fact that “we have awesome new technology that creates a serious tension between two values we all treasure—privacy and safety.”

He concludes, “That tension should not be resolved by corporations that sell stuff for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn’t drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time.” He encouraged all Americans to “participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need.”

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