The US Justice Department has used its formal legal rebuttal against Apple in the landmark privacy case to accuse the company of seeking to usurp power from the US government in a bid to make its iPhones “warrant-proof”.



Using phrases such as “technological fiat” and claiming Apple was posturing as “the primary guardian of Americans’ privacy”, the government reasserted that the company is putting its brand ahead of public safety.

“Apple’s rhetoric is not only false,” government lawyers wrote in the 35-page brief, submitted Thursday, “but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the fourth amendment, longstanding precedent and venerable laws, and the democratically elected branches of government”.

Justice Department lawyers again claimed that Apple has made a “deliberate marketing decision to engineer its products so the government cannot search them, even with a warrant”.

They struck back at Apple’s claims that China and other authoritarian governments will point to the warrant as a pretext for their own attempts at forcing access into customer data, saying that any such access is an “inevitable consequence of Apple’s own business decisions” to operate in those markets.

Just a few hours later, Apple general counsel Bruce Sewell responded in a conference call with reporters, accusing federal prosecutors of being “offensive” and “desperate” in a remarkable escalation of the fight.

“In 30 years of practice, I don’t think I’ve ever seen a legal brief that was more intended to smear the other side,” Sewell said. “I can only conclude that the Department of Justice is so desperate at this point that they’ve thrown decorum to the winds.”



Since deciding on 16 February to defy a warrant to unlock an iPhone used by the San Bernardino terrorist Syed Farook, Apple has repeatedly argued that compliance with the request will establish a precedent that governments can force technology companies to write code undermining their security features. The company argues such a step has broad and ominous implications for internet security and free speech and beyond the bounds of the specific law the government uses to undergird the warrant.

Although FBI director James Comey has conceded to skeptical legislators that victory in the Apple case will indeed establish a precedent, the Justice Department on Thursday continued to argue that the warrant “applies to a single device” only.

Rather, the government argued Apple has created a straw-man argument over privacy to distract the court. “Apple demands that the court should instead address the broad questions whether Apple should be required to unlock every iPhone in every instance,” the government contended.

Apple’s chief counsel recently told Congress that the government’s rhetoric about Apple served to cut off a complex debate about cybersecurity and national security. Meanwhile, ordering America’s largest company to reengineer its products would violate American free speech protections and prohibitions on forced labor, Apple said.

But compelling Apple to write code unlocking the iPhone 5C used by Farook “is not lawless tyranny”, the government said in its submission. “Rather, it is ordered liberty vindicating the rule of law.”

In some ways, Apple and the Justice Department appear to no longer be arguing facts of the case but rather how law enforcement is supposed to work in the US. The iPhone maker has repeatedly argued that private companies can’t be compelled on a whim to assist authorities without limits. The government responds: sometimes, complying with the law is hard.

“The ‘essential operations’ of the American legal system rest upon people sometimes having to say things that they would rather not say,” the government lawyers wrote, before adding that Apple’s computer code may not be covered under the US constitution’s first amendment. “There is reason to doubt that functional programming is even entitled to traditional speech protections.”

The government also cites previous cases in which telecommunications companies were forced to write code to assist government investigations.

The case law on code as speech is mixed. In 1996, a federal court effectively ended America’s last battle over encryption and law enforcement when it ruled an encryption algorithm written by a University of California, Berkeley graduate student was “protected speech”.

FBI special agent Christopher Pluhar, an investigator on the San Bernardino attacks with experience as a mobile-device forensic examiner, indicated in a separate filing what the FBI is interested in extracting from the iPhone 5C Farook used.

In a recitation of his investigation, Pluhar wrote in his filing that his examination of the iPhone’s data backups to its associated iCloud account – to which Apple provided the FBI help, though not code, in accessing – did not include after 22 October the iPhone’s email, photos and notes clients. Pluhar did not mention the end-to-end encrypted iMessage chat client. He also claimed that none of these backups could have provided the FBI access to the sought data, since the phone was turned off when the FBI acquired it.

Pluhar noted that before seeking the 16 February warrant he had extensively discussed government proposals for cooperation with Apple attorney Lisa Olle and privacy chief Erik Neuenschwander, and both sides sought a technical way out of the impasse. The difficulties were entrenched by an episode in which the FBI and San Bernardino county officials reset the iCloud account password, preventing further iCloud access to data the phone could have backed up.

Some US lawmakers have signaled they will pursue legislation that would penalize companies that say their technology prevents them from assisting law enforcement, and the government’s lawyers appeared to be equally interested in persuading American voters as Magistrate Judge Sheri Pym. Public opinion polls show voters remain split on the Apple case.

To that end, the government argued that the privacy protections the iPhone maker seeks already are embedded in American law and its three branches of government.

“The government respectfully submits that those authorities should be entrusted to strike the balance between each citizen’s right to privacy and all citizens’ right to safety and justice,” the government said. “The rule of law does not repose that power in a single corporation, no matter how successful it has been in selling its products.”