DOJ ups ante: New motion asks court to force Apple to help FBI crack attacker’s iPhone

The government today filed a motion in federal court asking a judge to immediately compel Apple to assist the Federal Bureau of Investigation (FBI) in accessing the iPhone 5C used by Syed Rizwan Farook, one of the people accused of killing 14 in San Bernardino, Calif. two months ago.

“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,” the government’s motion stated. “Apple has attempted to design and market its product 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.”

[ BACKGROUND: Apple to challenge court’s backdoor ruling, failure could set dangerous legal precedent  ]

The Department of Justice (DOJ), whose attorneys filed today’s motion, seized on Apple’s public comments earlier this week as it asked the court to make the firm follow the court’s command. On Tuesday, Apple CEO Tim Cook published an open letter on the company’s website. “We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country,” Cook wrote. “We believe it would be in the best interest of everyone to step back and consider the implications.”

Under the decision reached Tuesday, Apple had until Feb. 26 to rebut the order by arguing that it would be “unreasonably burdensome.”

Essentially, the government now wants the court to pick up the pace.

“Apple’s public statement makes clear that Apple will not comply with the Court’s Order,” today’s motion by the DOJ said. “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 35-page filing, government lawyers argued that forcing Apple to assist in accessing Farook’s iPhone would not be a burden to the company — a preemptive strike against what Apple will almost certainly spell out in its rebuttal — and along the way, took a swipe at many of Cook’s rationales for challenging the court order.

“To the extent that Apple objects on the grounds that it would undermine its marketing strategy to comply with this Court’s Order, or that it has an overall objection to anything that enables lawful access by the government to encrypted information, the government believes these objections are irrelevant and not legally cognizable before this Court,” the DOJ’s motion read.

In his Tuesday letter, Cook made reference to factors that the DOJ may have interpreted as “marketing strategy.”

“Customers expect Apple and other technology companies to do everything in our power to protect their personal information, and at Apple we are deeply committed to safeguarding their data,” Cook said.

The DOJ also rejected Cook’s use of words like “back door” and “hack” in his letter when he said, “[The FBI has] asked us to build a backdoor to the iPhone” and “The government is asking Apple to hack our own users….”

“That is an unwarranted and inaccurate characterization,” the government said.

Elsewhere in the motion, the government noted that Apple had told authorities that the company could assist, as several security experts had concluded this week, but that it chose not to. “[Apple] conceded that it had the technical capability to help,” the motion stated.