Yesterday afternoon we posted a report titled "The DOJ's War with Apple Escalates with a New Court Filing." We noted in the report that the "Justice Department (DOJ) is pushing forward with its legal fight against Apple, urging a federal judge to compel the tech giant to help the FBI crack open a cellphone left behind by one of the San Bernardino, California, shooters. Prosecutors wrote in a new filing that 'Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this court's [previous order], Apple has responded by publicly repudiating that order.'" Considering that this war is being fought by Apple, in some ways as a PR war, we wanted to provide you with the actual court document that the Government filed with the court yesterday so that you could read the facts for yourself. This case will be back in Court on March 22, 2016.
Notes from the 'Authorities Introduction'
The following are random notes from the Government's Authorities Introduction:
"Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this Court's Order of February 16, 2016, Apple has responded by publicly repudiating that Order. See Exhibit Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which has been found by this Court to be warranted for an important investigation. Despite its efforts, Apple nonetheless retains the technical ability to comply with the Order, and so should be required to obey it.
Apple left the government with no option other than to apply to this Court for the Order issued on February 16, 2016. The Order requires Apple to assist the FBI with respect to this single iPhone used by Farook by providing the FBI with the opportunity to determine the passcode.
The Order does not, as Apple's public statement alleges, require Apple to create or provide a "back door to every iPhone; it does not provide "hackers and criminals access to iPhones; it does not require Apple to "hack [its] own users" or to "decrypt" its own phones; it does not give the government "the power to reach into anyone's device" without a warrant or court authorization; and it does not compromise the security of personal information.
To the contrary, the Order allows Apple to retain custody of its software at all times and it gives Apple flexibility in the manner in which it provides assistance. In fact, the software never has to come into the government's custody.
Based on Apple 1 s recent public statement and other statements by Apple / 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
The government does not seek to deny Apple its right to be heard, and expects these issues to be fully briefed before the Court; however, the urgency of this investigation requires this motion now that Apple has made its intention not to comply patently clear. This aspect of the investigation into the December 2, 2015 terrorist attack must move forward.
In the government's filing they note that Apple has built into iPhones a feature whereby if more than 10 attempts are made at opening the iPhone aren't successful there's an auto-erase function whereby all data could become permanently inaccessible.
"The information and data contained on the SUBJECT DEVICE is of particular concern to the government because, while evidence found on the iCloud account associated with the SUBJECT DEVICE indicates that Farook communicated with victims who were later killed during the shootings on December 2, 2015, the backup iCloud data which the government has been able to obtain for the account ends on October 19, 2015."
"In addition, toll records for the SUBJECT DEVICE establish that Farook communicated with Malik using the SUBJECT "DEVICE between July and November 2015, but this information is not found in the backup iCloud data. Accordingly, there may be critical communications and data prior to and around the time of the shooting that thus far has not been accessed, may reside solely on the SUBJECT DEVICE; and cannot be accessed by any other means known to either the government or Apple."
"Apple appears to object [to the court order] 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 filing then goes into presenting facts of the 'All Writs Act' and why it's relevant in this case. They further explain why compelling Apple to write new code in a discrete and limited manner isn't an unreasonable burden for Apple who writes code as part of its regular business.
In their conclusion they note the following: "This Court issued a valid Order pursuant to the All Writs Act requiring Apple to assist the United States in enabling the search for evidence pursuant to a lawful search warrant. Apple has publicly stated that it will oppose this Order, and has not agreed to comply. For the foregoing reasons, the government respectfully requests that this Court issue an Order compelling Apple to comply."
The Government's Motion to Compel Apple to comply with Court's February 16, 2016 order compelling Assistance in Search was filed yesterday, Feb. 20, 2016 in Riverside California. The hearing date is noted as being March 22, 2016.
The Government's Motion in Full
The two sides will be back in court on March 22.