The public dispute between the Justice Department and Apple continued Monday as the tech giant called on the government to withdraw its demand for help in unlocking a phone used by one of the shooters in December’s terrorist attacks in San Bernardino, Calif., and instead let a commission of experts discuss the issue.
Apple’s chief executive, Tim Cook, told employees Monday that the case “is about much more than a single phone or a single investigation” and risked setting a precedent that “threatens everyone’s civil liberties” — the latest salvo in a war of words between the federal government and one of the world’s most valuable companies.
FBI Director James B. Comey issued his own message to the public late Sunday, asking people to “take a deep breath” and describing the government’s request as quite narrow. He insisted that authorities were not asking Apple to create “a master key,” as the company has asserted, and that the government’s demand was not “trying to set a precedent” that will invade user privacy, but was “about the victims and justice.”
Comey added: “Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t. But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.”
The two sides are waging a high-stakes battle on two fronts — in the courts of law and public opinion — on the controversial issue of how far the government can go to require companies to provide help in unlocking encrypted phones. It is part of a much larger debate over balancing privacy and security in a digital age.
“As individuals and as a company, we have no tolerance or sympathy for terrorists,” Cook said in a letter emailed to Apple employees around the world and released by the firm. “When they commit unspeakable acts like the tragic attacks in San Bernardino, we work to help the authorities pursue justice for the victims. And that’s exactly what we did.”
Cook asserted that the government is essentially seeking to have Apple “roll back data protections to iOS 7,” an operating system launched in September 2013 that enabled Apple to extract data for the police in criminal investigations.
But beginning in September 2014 , Apple began issuing iPhones with a different operating system, first iOS 8 and now iOS 9, which do not allow the company to extract data because the information is encrypted with a key derived from a password set by the user, and which Apple does not know.
The iPhone the FBI needs help in unlocking was used by Syed Rizwan Farook, one of two shooters in the Dec. 2 attacks that killed 14 people and wounded 22. It runs on iOS 9. Last Tuesday, the Justice Department got a court to order the firm to design software that would disable a feature on the phone that wipes all the data after 10 incorrect tries at guessing the password.
“We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing, and without it taking a decade to guess correctly,” Comey said. “We don’t want to break anyone’s encryption.”
He said the tension in the case should not be “resolved by corporations that sell stuff for a living,” alluding to a line of attack made in a Justice Department filing Friday and one he has voiced on Capitol Hill: that Apple is digging in its heels on encryption for marketing reasons.
The firm has positioned itself in recent years as a champion of consumer privacy and data security. Although it quietly began strengthening encryption on its products years ago, it began to publicize its efforts in the wake of disclosures by former intelligence contractor Edward Snowden about U.S. government surveillance and spy agencies’ reliance on U.S. tech firms.
The tension also should not be resolved by the FBI, Comey said, but rather by the American people.
So far, the public appears to be siding with the Justice Department. In a survey conducted by Pew Research Center, a little more than half of Americans — 51 percent — said Apple should help the FBI unlock the iPhone, compared with 38 percent who said Apple should not.
Apple on Monday urged the Justice Department to drop its request and instead “form a commission” or a panel of experts on intelligence, technology and civil liberties to discuss the implications for law enforcement, national security, privacy and personal freedoms.
A federal magistrate judge in Riverside, Calif., will hear oral arguments next month on whether Apple should be forced to comply with the court order. A group of victims and victims’ families are planning to file a brief in support of the government. And several major tech firms are planning to file briefs in support of Apple.
A key legal issue is whether the basis for the government’s court order is lawful. The Justice Department cited a 1789 law, the All Writs Act, as providing the authority to issue the order directing Apple to provide assistance. Apple is contesting that authority in this case and in a separate case in Brooklyn involving a different type of iPhone.
In the latter case, the government is seeking help to extract data from a phone running on iOS 7 — and not asking Apple to build new software. But in both cases, the courts must decide whether that colonial era law can be used to direct a company to provide the technical assistance. A decision in the Brooklyn case has been pending for months.