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19Feb16

Justice Department Calls Apple's Refusal to Unlock iPhone a 'Marketing Strategy'

The Justice Department, frustrated by its inability to unlock the iPhone of one of the attackers in the San Bernardino killings, demanded on Friday that a judge immediately order Apple to give it the technical tools to get inside the phone.

Apple's refusal "appears to be based on its concern for its business model and public brand marketing strategy" rather than a legal rationale, prosecutors said in a court filing that further escalated the confrontation between the Obama administration and Apple.

"This is not the end of privacy," the Justice Department declared, a mocking reference to Apple's rationale for contesting the court order prosecutors obtained from a judge directing Apple to help them break into the phone.

The sharply worded, 25-page motion to compel Apple's cooperation seemed aimed as much at swaying public opinion as influencing the federal magistrate judge in Riverside, Calif., who issued the order to Apple.

A blistering open letter this week from Timothy D. Cook, Apple's chief executive, had rallied many privacy advocates behind the company, and law enforcement officials said that the latest volley from the Justice Department on Friday was meant largely to rebut Mr. Cook's arguments and buttress the government's own case.

Apple executives, speaking with reporters after the filing on the condition that they not be identified by name, said they were puzzled by the Justice Department's decision to rush back into court before the company even had a chance to respond to this week's court order.

They reiterated their concerns that the government's novel demands would endanger the privacy and security of all of their iPhone customers in the future, and said they remained determined to fight the government's demands.

Apple has until next week to respond to an order by a California magistrate this week compelling it to provide the technical assistance that the F.B.I. says it needs to get into the phone.

But the Justice Department sought to pre-empt Apple's response with its own filing on Friday, saying Apple has already made its opposition publicly known and that the "urgency of this investigation" demands faster action.

"Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this court's order," prosecutors wrote, "Apple has responded by publicly repudiating that order."

They went on to accuse Apple of exaggerating how difficult it would be for the company's computer engineers to come up with a way to get into the phone and to disable an "auto-erase" feature that permanently deletes the data inside after 10 failed password attempts.

"At no point has Apple ever said that it does not have the technical ability to comply with the order or that the order asks Apple to undertake an unreasonably challenging software development task," prosecutors wrote. "On this point, Apple's silence speaks volumes."

The Justice Department wants to force Apple to write software that would allow the government to try millions of random password combinations to get into the phone.

Apple has described this as an unprecedented demand, one that would require the company's engineers to build a new operating system from scratch and effectively hack into its own phone.

The Justice Department said that was a significant overstatement. Prosecutors said the technology was no more difficult than passing a new software update to the phone — something the company does regularly.

Apple executives acknowledged on Friday that it was technically possible but said it was still unwarranted for the government to demand it to create something that did not exist.

In his 1,100-word letter to his customers early Wednesday, Mr. Cook said what prosecutors were demanding amounted to forcing Apple to create a "back door" to get around its own security protocols, and he vowed a fight. He accused the Justice Department of mounting a "chilling" attack on privacy and Internet security.

Apple has taken a strong stand on privacy not only because of Mr. Cook's strong personal beliefs on the issue, but also because the company's business model encourages a bolder stance. Unlike other Silicon Valley tech giants, Apple's business has a straightforward hardware model that hinges on selling physical devices like iPhones, iPads and Macs. Other tech companies, including Google, Facebook and Twitter, depend more on the online collection of large amounts of consumer data for their digital advertising-oriented businesses.

With this week's dispute generating wide attention on Capitol Hill, Republican and Democratic leaders from the House Energy and Commerce Committee sent letters to Apple and the F.B.I. on inviting their executives to testify publicly on the issue at a hearing.

The lawmakers wrote in a joint letter that the public debate over encryption and its impact on law enforcement investigations "has now come to a critical juncture" with this week's order regarding the iPhone 5c used by Syed Farook in an attack in December that resulted in 14 deaths.

The Justice Department's latest filing on Friday also offered new details about the unsuccessful negotiations between Apple and the government to resolve the encryption on their own before the dispute became public this week.

Among other steps, the two sides discussed options that included using data backed up to the iCloud, other backup computers, separately held toll records or other databases to capture the information held in the cellphone. But for a variety of reasons, the F.B.I concluded, none of those options would work. Among other problems, the default system that backed up the phone on the iCloud had been disabled — apparently by Mr. Farook — in October, six weeks before the shootings.

In its filing, the Justice Department suggested repeatedly that Apple has put its "marketing concerns" above its corporate responsibility to comply with a lawful order to assist law enforcement.

"Apple is not above the law in that regard," the filing said.

[Source: By Eric Lichtblau and Matt Apuzzo, The New York Times, Washington, 19Feb16]
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Privacy and counterintelligence
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