Apple vs FBI: Apple calls court order 'unconstitutional,' asks judge to toss

Apple responds to court order
Apple responds to court order

Calling it unconstitutional and a flagrant threat to both privacy and security, Apple Thursday asked US magistrate Sharon Pym to toss out her order compelling the company to unlock an iPhone used by one of the San Bernardino shooters.

What the judge is asking, in response to a request from the federal government, is for Apple to build a backdoor into its software that effectively “undermines the security mechanisms of its own products”, according to Apple. It would hand the US government the “dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy of hundreds of millions of individuals around the globe.”

Apple has contended from the start that the government's request to unlock the phone – which is protected by security features that wipe it clean after 10 unsuccessful attempts to determine its passcode – was not about a single phone but about an alarming precedent.

“The government says 'Just this once' and ‘Just this phone'. But the government knows these statements are not true,” Apple's legal eagles, led by former US solicitor general Theodore Olson, wrote, pointing to numerous government requests already on the table, “some of which are pending in other courts”.

A letter from Apple attorney Marc J. Zwillinger unsealed in court on Tuesday underscored that point and listed nine cases in which federal prosecutors had pressed Apple for help between October 2015 and 9 February.  Zwillinger noted that “Apple has not agreed to perform any services on the devices to which those requests are directed”.

Privacy advocates and much of the tech industry have thrown their support behind the company that CEO Tim Cook, in a letter to customers, referred to as a “wholly American company” that found it uncomfortable/ disconcerting to be up against the FBI.

In the Thursday brief filed in Pym's court, Apple's legal team took issue with the 227-year-old law – the All Writs Act of 1789 – that Pym used as the underpinning for her order. It was not intended to be used by “judges to compel innocent third parties to provide decryption services to the FBI," Apple's legal team wrote.

Both Apple and the FBI are set to testify before the US House of Representatives' Judiciary Committee on 1 March.