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Apple being forced into government service: Lawyer

Pros break down Apple vs FBI

Families of the victims killed in the San Bernardino terror attack are supporting the U.S. government's push to require Apple to help the FBI hack into a locked iPhone involved in the investigation.

Whether this additional support will help the FBI's case against Apple is up for debate. Regardless, many in the legal community believe the tech giant is unlikely to budge on this issue.

"Apple is in the right because the federal government has proved at this point that it's not capable of managing data well," said Michael Barnes, a former White House legal adviser under President George W. Bush. "It effectively abuses our privacy rights and neglects our security rights."

The tech giant itself argued as much on Thursday, when it filed a motion to vacate a California judge's order that compelled Apple to create software that would let investigators access the mobile phone used by one of the San Bernardino attackers. "No court has ever granted the government power to force companies like Apple to weaken its security systems to facilitate the government's access to private individuals' information," Apple said in a release.

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One obstacle the government is facing is that current law has not mandated companies like Apple to create a backdoor for law enforcement, Barnes told CNBC's "Closing Bell".

"The FBI is trying to require companies like Google and Apple to do something that is not necessary, that is not mandatory under federal law, " noted Barnes. "The government is now requiring a private entity to be conscripted into government service."

That argument is precisely the one made by Apple in its court filing this week. The iPhone maker accused officials of trying to force Apple to create a "GovtOS", or a government operating system that could easily be used on other phones. It added that hacking the phone would violate Apple's constitutional rights, and undermine key consumer expectations of security and privacy.

Despite the perceived problems the government may face by hacking the iPhone in question, FBI Director James Comey said in a statement released this week, "We don't want to break anyone's encryption or set a master key loose on the world."

The software would help the FBI hack into the phone by bypassing a security time delay and feature that erases all data after 10 consecutive unsuccessful attempts to guess the passcode. This would allow the FBI to use technology to rapidly and repeatedly test numbers in what's known as a brute force attack.

The Justice Department filed a motion Friday to compel Apple to assist investigators in accessing the data.

"I think Jim Comey, the FBI and the Department of Justice are doing their duty. They are doing what the public expects of them in this particular case," said Ronald Hosko, president of the Law Enforcement Legal Defense fund.

"We want to know not only why, but we want to know where all of the offenders in this terrible terrorist act in San Bernardino identify," he added.

Hosko, who was also a former FBI Assistant Director, said that James Comey is exercising his fundamental duty as Director of the FBI in welcoming the federal courts and Congress to weigh in on these conversations and promote a resolution.

A hearing related to the Justice Department's request for Apple to unlock Syed Rizwan Farook's iPhone — which was owned by his employer — is scheduled for March 22.

The Associated Press and CNBC's Tom DiChristopher contributed to this report.