Court filing from Department of Justice says Apple is more concerned with ‘its marketing strategy’ than helping FBI unlock San Bernardino shooter’s iPhone

The FBI accused Apple of prioritizing its public relations strategy over a terrorism investigation on Friday in a significant escalation of this week’s war between the tech company and the law enforcement agency.

Inside the FBI's encryption battle with Apple Read more

The accusation, made in a court filing demanding Apple comply with an order to unlock an iPhone belonging to the San Bernardino terrorists, represents a nadir in the relationship between two opponents that previously extended each other public respect.



“Apple’s current refusal to comply with the Court’s Order, despite the technical feasibility of doing so, instead appears to be based on its concern for its business model and public brand marketing strategy,” Justice Department attorneys wrote in the Friday filing.



Tim Cook, Apple’s CEO, called the court order “chilling” in a letter published on the company’s website. Cook called for public debate and has been backed in his fight by some of tech’s biggest names, including Google’s chief executive Sundar Pichai, WhatsApp and whistleblower Edward Snowden.

“The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand,” he wrote.

The government and the US’s most valuable company have been shadowboxing over digital privacy since fall 2014, when Apple expanded the use of encryption on its phones. In a shift, Apple said it would no longer be able to unlock devices for authorities, even if faced with a warrant.

But the disagreement has been mostly cordial. Even in January 2016, FBI director James Comey and other national security officials met Tim Cook in San Jose in an effort to mend fences and look for other areas of cooperation.



The government on Friday took off its gloves.



It accused Apple of “numerous mischaracterizations” of the government’s request and “an incorrect understanding” of the law underlying the Justice Department argument.



The government has asked Apple to write and digitally sign software that would make it easier for investigators to guess the passcode for an iPhone 5C used by Syed Farook, one of the shooters in the December attack in San Bernardino, California, that left 14 people dead.



Apple said that forcing it to do so would undermine trust in the security of its company’s products. The government, in effect, would be forcing it to hack one of its phones through the automatic update process consumers use monthly.

“The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe,” Cook wrote.

If Apple complies with this order, the company argues, it will set a legal precedent that will allow the government to order “updates” on suspect’s Apple products again and again.



The problem, the government counters, is that Apple has complied with similar requests in the past, before it tightened the security of its products. In the past the government, says, it hasn’t made the same public protests.



A key government claim is that it is seeking access to one particular device, thereby limiting the danger to Apple’s security features, and would permit the company to retain possession of the specific code it would have to write to unlock the phone. The company maintains that once it does that, it sets a precedent that law enforcement officials would use at every opportunity when it cannot immediately unlock a suspect’s phone.

The Justice Department said Apple had cooperated under the law in previous cases and was falsely attempting to make a legal exemption for the iPhone Farook used. It also rejected Cook’s contention that it was being asked to introduce a security flaw onto its devices that would stretch beyond the current case.

Department lawyers made particular note of pre-2014 compliance the company gave, before it introduced a version of its mobile operating system that removed the company from possessing decryption keys for its users. They contend that Apple, as a provider of the secured communications, is inherently responsible for fulfilling warrant requests for third-party data.



“Just because Apple has sold the phone to a customer and that customer has created a passcode does not mean that the close software connection ceases to exist; Apple has designed the phone and software updates so that Apple’s continued involvement and connection is required,” the government lawyers contend.



The filing comes as the government is waging its own public relations battle over the increasing use of encryption by tech companies. For more than a year Comey has been pushing the Obama administration and Congress to regulate how companies like Apple use encryption that can stymie his agents. Both sides have declined, realizing that the FBI fought and lost a similar battle – the so called Crypto Wars – during the Clinton administration.



“At no point has Apple ever said that it does not have the technical ability to comply with the Order, or that the Order asks Apple to undertake an unreasonably challenging development task,” the government’s filing says. “On this point, Apple’s silence speaks volumes.”

But the government in its filing seems to acknowledge its legal push is about much more than gaining access to a single phone. Rather, it wants to ensure it can maintain access to any phone.

“Where Apple designed its software and that design interferes with the execution of search warrants… where it owns and licensed the software used to further the criminal enterprise, where it retains exclusive control over the source code necessary to modify and install the software, and where the very software must now be used to enable the search ordered by the warrant, compulsion of Apple is permissible,” the government says.





Apple has yet to file any formal response with the court. A hearing is scheduled in California for 22 March.

