Compliance Management, Privacy

Apple attorney says feds took ‘cheap shot’ in brief accusing co. of false rhetoric

The Justice Department Thursday filed what Apple's general counsel called “cheap shot brief” in the ongoing battle between the two over unlocking an iPhone 5c used by one of the San Bernardino shooters.

Federal prosecutors need a way into the phone. And they want Apple to provide it. The latest volley came when the Justice Department filed documents with the court accusing Apple of “false” rhetoric as it defends its resistance to helping the Federal Bureau of Investigation (FBI) crack the phone used by Syed Rizwan Farook, one of the two shooters in the San Bernardino attack last December.

"Apple seeks to characterize the All Writs an obscure law dredged up by the government to achieve unprecedented power. That premise is false," the government filing said, calling the act "a vital part of our legal system that is regularly invoked in a variety of contexts" and noting a broadness and flexibility intended by Congress when the it became law in 1789. "The Act is not a judicial usurpation of congressional power, but rather an example of Congress's reliance upon the courts' sound discretion and close familiarity with specific facts to ensure that justice is done," federal prosecutors said.

The filing reiterated the government's position that California federal magistrate Sheri Prym's order directing Apple to offer its assistance “applies to a single iPhone, and it allows Apple to decide the least burdensome way of complying.” The feds called the court order “modest.”

The feds contended that "even if criminals, terrorists and hackers somehow infiltrated Apple and stole the software necessary to unlock Farook's iPhone, the only thing that software could be used to do is unlock Farook's iPhone."

Apple and privacy advocates have contended all along that the government's request is not about a one-off request for help cracking the iPhone used by Farook, which is passcode protected and has an auto-erase security feature activated that will wipe the phone clean if too many unsuccessful logins are attempted.

The Cupertino, Calif.-based tech company's general counsel, Bruce Sewell, told reporters on a Thursday press call that Apple was surprised by the government's latest filing, saying the brief's tone “reads like an indictment” and essentially accuses Apple of making "deliberate changes" to intentionally block law enforcement officials as well as raising "the specter that Apple has a different and sinister relationship with China."

The brief, he noted, smacks of desperation, adding that it appears the Justice Department is "throwing all decorum to the winds.”

Privacy advocates and numerous tech firms have come forward to support Apple, fearing the government is using the San Bernardino incident as a test case. Alex Heid, chief research officer at Security Scorecard, called the case the latest incarnation of a long running agenda by law enforcement to create a centralized massive electronic surveillance network.

In comments emailed to, Heid said the recent cultural development whereby almost every human is outfitted with a powerful smartphone has created a new target for those who seek to consolidate and centralize surveillance efforts – hence, the openly hostile back-and-forth.  

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