The FBI now claims a third party has shown them a method for unlocking the San Bernardino shooter's iPhone. Here are the latest facts we know about Apple vs. the FBI. (Jhaan Elker/The Washington Post)

The Justice Department said Thursday that Apple’s attempts at linking an ongoing fight over a locked iPhone to broader questions about encryption are “a diversion,” pushing back against an argument repeatedly made by the company and its supporters in Silicon Valley.

Federal prosecutors argued in a court filing that this fight is one of Apple’s own making, accusing the company of having “deliberately raised technological barriers” that are keeping the iPhone locked.

Apple and a number of other major tech firms — including Google, Facebook and Microsoft — have said the California case could set a dangerous precedent, one that could have a far-reaching impact on privacy in an era where personal information is increasingly protected on encrypted devices.

In its own court filings, Apple has said the FBI seeks a “dangerous power” that could impact hundreds of millions of people and be used to force them to unlock other phones in other cases.

However, the government pushed back at that argument on Thursday, saying again that the questions and requests here are narrowly focused at getting “Apple to disable the warrant-proof barriers it designed.”

“Apple demands that the court should instead address the broad questions whether Apple should be required to unlock every iPhone in every instance, or whether Apple should be required to give the government the means to do so,” the Justice Department said in a motion filed in the U.S. District Court for the Central District of California. “Those questions are not before this court.”

The government added: “Apple desperately wants — desperately needs — this case not to be ‘about one isolated iPhone.'”

Authorities are insisting that the order in this case is limited and applies to a single iPhone, though FBI Director James B. Comey acknowledged earlier this month that if the government prevails here it could establish a precedent for future cases. In the new filing, the government again argued that the order here focuses on one particular phone.

“The government and the community need to know what is on the terrorist’s phone, and the government needs Apple’s assistance to find out,” the filing states.

In its filing Thursday, the government also mentioned how it had chosen — so far, at least — not to go after Apple’s source code and described the company as being critical of the FBI “while extolling itself as the primary guardian of Americans’ privacy.”

Bruce Sewell, Apple’s general counsel, took issue with the government’s language, which he described as unnecessarily insulting.

“The tone of the brief reads like an indictment,” Sewell said during a conference call with reporters Thursday afternoon. “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 with false accusations and innuendo.”


The government has previously argued that Apple’s objections in this case stemmed from worries about its marketing, and in the latest brief, authorities said Apple had made a “deliberate marketing decision” to create products so that governments could not search them.

Sewell took particular issue with suggestions that Apple’s motives and arguments were anything other than pure.

“We add security features to protect our customers from hackers and criminals,” he said, adding that it “is demeaning” to suggest otherwise.

This latest salvo in the fight between the federal government and the technology giant come less than two weeks before they face off for oral arguments in the case focusing on whether Apple must help investigators access information on an iPhone belonging to one of the San Bernardino attackers.

The Groupon Inc. application is displayed on an Apple Inc. iPhone in an arranged photograph taken in New York, U.S., on Friday, Feb. 5, 2016. Groupon is scheduled to release earnings figures on February 11. Photographer: Chris Goodney/Bloomberg (Chris Goodney/Bloomberg)

The iPhone in question was recovered after the Dec. 2 attack that killed 14 people and injured 22 others. It was given to one of the attackers in his job as a county health inspector, and while the FBI has obtained some backups taken from the phone, it has not been able to access the data stored on the device itself.

As a result, the Justice Department sought and received a judge’s order last month directing Apple to write software that would disable a feature deleting data on the phone after 10 incorrect password attempts, something Apple has said it will fight all the way to the Supreme Court.

Law enforcement groups and some relatives of victims of the San Bernardino attack have sided with the FBI, arguing in favor of helping investigators access the phone, which they say could contain information on possible accomplices or other terrorists. Tech firms and other outside groups, meanwhile, have backed Apple, saying that the government is seeking to undermine security vital to protecting personal information.

The argument has played out in very public fashion in recent weeks, with a series of court filings being followed by public appearances, testimonies and open letters, all giving both sides a chance to try and shape public opinion before they attempt to persuade a judge.

This story will be updated.


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