In preparation for next week’s hearing, Apple Inc. submitted a court filing Tuesday criticizing the United States Department of Justice, claiming that the U.S. founding fathers “would be appalled” at the department’s order.
The company first brought attention to the conflict in February, when a U.S. magistrate judge ordered Apple to create the software to decrypt the iPhone 5c used by San Bernardino shooting suspect Syed Farook.
Apple CEO Tim Cook argued that creating software to override the iPhone’s encryption “has implications far beyond the legal case at hand,” and could set a precedent for future cases.
In the court filing released Tuesday, Apple’s lawyers argued that the DoJ and the FBI are “seeking an order from this Court that would force Apple to create exactly the kind of operating system that Congress has thus far refused to require,” and that in doing so, “they are asking this Court to resolve a policy and political issue that is dividing various agencies of the Executive Branch as well as Congress. “
The DoJ has used the All Writs Act of 1789 as justification for its order. The act states that:
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law” and that “an alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.”
Apple is currently facing 12 orders from the DoJ to provide data from iPhones in various cases. On Feb. 29, Brooklyn Magistrate Judge Orenstein became the first federal judge to rule that the All Writs Act does not justify “imposing on Apple the obligation to assist the government’s investigation against its will” in a criminal drug case.
Apple argued that the court should reject the DoJ’s order in the San Bernardino case because the All Writs Act “cannot be stretched to fit this case,” claiming that by using it, the government “attempts to rewrite history.”
“This Court should reject that request, because the All Writs Act does not authorize such relief, and the Constitution forbids it. The All Writs Act cannot be stretched to fit this case because to do so ‘would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction.’ …The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is.”
“According to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up,” Apple argued. “The Founders would be appalled.”
Apple also criticized comments made by FBI Director James Comey during a recent congressional hearing from March 1, and questioned why the DoJ has not gone to the NSA, if it is just wanting to hack into the one iPhone in question.
“The government does not deny that there may be other agencies in the government that could assist it in unlocking the phone and accessing its data; rather, it claims, without support, that it has no obligation to consult other agencies,” Apple wrote, noting that former National Coordinator for Security, Infrastructure Protection and Counter-terrorism, Richard Clarke said, “Every expert I know believes that NSA could crack this phone.”
The court hearing is scheduled for March 22, and in its court filing, Apple’s lawyers argued that the DoJ’s order is far from what the government has described as a “modest” rule only applying to a “single iPhone.”
“Instead, this case hinges on a contentious policy issue about how society should weigh what law enforcement officials want against the widespread repercussions and serious risk their demands would create,” Apple wrote.