The new filing is the latest phase in what has become a very public showdown between the federal government and one of the most valuable companies in the world. The confrontation centers on a device that may hold information about a terrorist attack, but it has far-reaching consequences for encryption and the debate between privacy and security.
A senior Apple executive said Friday that company’s refusal to help was about principles rather than marketing, and insisted that the company’s focus was on trying to preserve civil liberties and the security of its customers.
Another executive, speaking to reporters on a conference call Friday afternoon during which Apple officials asked not to be identified, expressed puzzlement that the government filed this latest motion, which he said was largely repeating arguments made in an earlier court order.
That second executive also said that Apple had signed a confidentiality agreement and agreed to keep the contents of discussions between authorities and the company confidential, but said that the motion filed Friday violated those terms.
In the “motion to compel” filed on Friday in U.S. District Court for the Central District of California, federal prosecutors say that allowing Apple to deny their request would thwart an investigation into a terrorist attack.
The government is contending that there could be “relevant, critical communications and data” from around the time of the shooting that are on the phone and were never backed up anywhere.
The Justice Department had sought and received an order from a judge in California asking Apple to disable a feature that automatically wipes data from a phone after 10 incorrect tries at entering a password. This order does not disable the phone itself, but would allow the government to potentially try tens of millions of different combinations to unlock the device.
According to the Justice Department, Apple is not helping the government execute a search warrant. The tech company, though, contends that the Justice Department is trying to force it to imperil other data held on other phones, a category that increasingly includes health records and other personal information.
After that order was signed, Apple chief executive Tim Cook posted an open letter on the company’s website depicting the request as “chilling” and “unprecedented.”
The government “asked us for something we simply do not have, and something we consider too dangerous to create,” he wrote. “They have asked us to build a backdoor to the iPhone.”
In its filing Friday, the Justice Department dismissed this contention, saying that Apple would “retain custody of its software at all times” without compromising the security of iPhones.
A spokesperson for Apple did not immediately respond to a request for further comment Friday.
Meanwhile, the fight could soon head to Capitol Hill. Members of Congress sent letters to Cook and FBI Director James B. Comey inviting them to testify before the House Committee on Energy and Commerce’s oversight and investigations subcommittee, calling the current moment “a critical juncture” in the ongoing debate.
These letters were signed by Rep. Fred Upton (R-Mich.), chair of the committee, Rep. Frank Pallone Jr. (D-N.J.) and two other members.
The government had asked for the order signed earlier this week under the All Writs Act, which dates back to 1789 and has been used to issue a variety of orders not otherwise governed by any statute. The Justice Department states in its filing that Apple has recognized the act in the past and helped search devices running earlier versions of its operating systems.
“Apple … did not assert that it lacks the technical capability to execute the order, that it is not essential to gaining access into the iPhone, or that it would be too time- or labor-intensive,” the filing states.
It continues: “Rather, Apple appears to object based on a combination of: a perceived negative impact on its reputation and marketing strategy were it to provide the ordered assistance to the government, numerous mischaracterizations of the requirements of the order, and an incorrect understanding of the All Writs Act.”
The current debate centers on an iPhone that belonged to Syed Rizwan Farook, who along with his wife, Tafsheen Malik, fatally shot 14 people during a Dec. 2 attack in San Bernardino, Calif. Both attackers pledged fealty to the Islamic State, and authorities are still looking into whether the pair had any ties to groups or people operating overseas.
Federal investigators have been unable to unlock the phone, which means they have not been able to access the data stored on the phone and not backed up anywhere else.
“It has been two months now, and we are still working on it,” Comey told Congress last week.
Authorities have also been unable to figure out what the attackers did during an 18-minute period that occurred in the four hours between the attack and a bloody gun battle that ended with police officers killing them both.
While FBI agents have searched other digital devices and accounts belonging to the attackers — which is how they found the Facebook page where Malik posted her pledge of allegiance to the Islamic State’s self-proclaimed emir — they have been unable to get into the iPhone 5C that Farook was given as part of his job with the San Bernardino County Department of Public Health.
Because Farook’s phone was locked, if the FBI tried 10 different incorrect passwords, the phone’s data would be wiped. The Justice Department is arguing that rather than creating a backdoor, its request to turn off the auto-erase function is akin to what a phone’s owner could do on their own and is more like when a person updates their apps or operating system.
Investigators have only been able to search data from the phone backed up to iCloud through Oct. 19, about six weeks before the attack, the motion filed Friday states, but that data does not include times Farook used the phone to communicate with his wife in the five months before the attack.
The filing notes that the FBI and Apple discussed other ways to try to access information on the locked phone, including trying to back up the phone’s data to an iCloud account.
The Apple executive, speaking on the call with reporters, said that engineers tried to help the government find other ways to access the data, like trying to connect it to a trusted WiFi network. These options did not work.
That same executive noted that within hours of the government taking possession of the phone, the Apple ID password was changed.
According to the Justice Department’s filing, the county health department, which owned the phone, had remotely reset the iCloud account’s password while seeking information in the hours after the attack. As a result, the phone could not be automatically backed up to that account after the password was changed. [Update: The county said it reset the password at the request of the FBI. Head here for more.]
Republican presidential candidate Donald Trump, who has criticized Apple this week for refusing to help, called Friday for a boycott of the company.
“What I think you ought to do is boycott Apple until such time as they give that security number,” Trump said during a town hall in Pawley’s Island, S.C. “How do you like that? I just thought of it. Boycott Apple.”
He pointed out that the phone is government-owned before saying that “Tim Cook is looking to do a big number, probably to show how liberal he is.”
Jose DelReal in Pawley’s Island, S.C., and Ellen Nakashima in Washington contributed to this report.
[This story has been updated.]