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Apple Files Its Motion to Throw Out Court Order to Hack San Bernardino iPhone

Apple asked a judge to throw out an order to help the FBI hack the password on a phone used by one of the San Bernardino attackers, according to court filings today.

The company argues the case would set a dangerous precedent by forcing Apple to create a back door to defeat the security on its phones, potentially undermining the security and privacy of hundreds of millions of users.

Apple says the government has misapplied the 200-year-old law to force Apple to develop software that would defeat security on the iPhone used by one of the attackers.

Apple CEO Timothy Cook delivers pauses while giving opening remarks while testifying before the Senate Homeland Security and Governmental Affairs Committee's Investigations Subcommittee about the company's offshore profit shifting and tax avoidance in the Dirksen Senate Office Building on Capitol Hill May 21, 2013 in Washington, DC.
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Apple CEO Timothy Cook delivers pauses while giving opening remarks while testifying before the Senate Homeland Security and Governmental Affairs Committee's Investigations Subcommittee about the company's offshore profit shifting and tax avoidance in the Dirksen Senate Office Building on Capitol Hill May 21, 2013 in Washington, DC.

"Apple strongly supports, and will continue to support, the efforts of law enforcement in pursuing justice against terrorists and other criminals — just as it has in this case and others," Apple argued. "But the unprecedented order requested by the government finds no support in law and would violate the Constitution."

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While the government maintains its request is narrow and specific — unlocking a single phone — Apple asserts that's simply not true. As soon as news of the court's order broke last week, state and local officials publicly said they planned to use the new software to open hundreds of other seized devices.

"Once the floodgates open, they cannot be closed," Apple wrote. "And the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote."

The filing is 36 pages long and it's chock full of legal vernacular, but those who care to parse it can read below.

One of Apple's key arguments in the filing centers on what it sees as the government's interpretation of something called the All Writs Act that would compel Apple to write code to bypass its security:

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? Nothing.

Apple argues that the venerable All Writs Act wasn't created to provide the courts "free-wheeling authority" to exercise new powers not afforded the courts by Congress — such as conscripting Apple to help the government hack iPhones. In fact, it notes, no court has ever authorized what the government is looking for, Apple maintains.

As was reported earlier this week, Apple is introducing a secondary First Amendment argument to prevent the government from accessing encrypted user data. Legal analysts quoted in Wired and Vice's Motherboard have suggested that this is perhaps the better route for Apple to take. Here's a breakdown of the free speech case:

  1. Citing legal precedent, Apple says that the code it writes qualifies as Constitutionally protected speech.
  2. Apple points out that the FBI is fundamentally asking the company to create new code and a new, specialized government operating system to access this data (what an executive referred to on the call as "GovOS").
  3. Finally, because the FBI is asking Apple to write new code to let the government into the phone, Apple argues that the government is "compelling" Apple's speech, which violates its First Amendment rights.

On a conference call with reporters the company held shortly after filing its motion to vacate, an Apple executive said that the company's code "reflects Apple's strong views about consumer security and privacy," and that the judge's order "forces Apple to express the government's viewpoint on privacy and security instead of its own."

By Dawn Chmielewski and Noah Kulwin, Re/code.net.

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