WASHINGTON—Apple Inc. and the U.S. government are making their cases before anyone steps into a courtroom over a judge’s order forcing Apple to help the FBI hack into an iPhone in a terrorism case.
Their legal arguments are expected to pit digital privacy rights against national security interests, and could affect millions of cellphone users.
Apple has until next Friday to protest in court the decision by a U.S. magistrate judge in California, according to two people familiar with the case who spoke on condition of anonymity to describe ongoing, private legal discussions.
One person said Apple had requested an extension and that the judge granted it during a teleconference Thursday with lawyers in the case. Prosecutors had opposed the request, the person said. The publicly available court docket wasn’t immediately updated to reflect the new schedule.
Meanwhile, the public relations campaigns are already under way.
Is Apple adequately cooperating with federal agents investigating last year’s deadly attack in San Bernardino, California? Is this simply a dispute to recover information from an iPhone used by the gunman, or a broader fight affecting the privacy rights of citizens who use Apple’s flagship product? Is this about profits or patriotism?
The Justice Department asked the judge to order Apple to create sophisticated software that the FBI could load onto the phone to bypass a self-destruct feature that erases all data after 10 consecutive, unsuccessful attempts to guess the unlocking passcode. Prosecutors said Apple could help the FBI “but has declined to provide that assistance voluntarily,” and they said Apple could perform the task easily.
That point is crucial because the government can’t compel a company’s help in some cases if doing so would be unreasonably burdensome, even though the U.S. would almost certainly pay Apple for the work.
Apple CEO Tim Cook distanced the company from the suggestion that it was protecting the privacy of an extremist. “The FBI asked us for help in the days following the attack, and we have worked hard to support the government’s efforts to solve this horrible crime,” Cook said. “We have no sympathy for terrorists.”
Cook also said the FBI’s latest demand went beyond previous requests for help: “The U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create,” Cook said. “They have asked us to build a backdoor to the iPhone.”
The term “backdoor,” describing a behind-the-scenes method that hackers use to gain unauthorized access, has for years colored the discussion of how the government can obtain protected information or eavesdrop on encrypted communications from criminals or terrorists.
The government is stressing that it wants help to unlock only the work-issued iPhone used by Syed Farook, who along with his wife killed 14 people in December.
But Apple says helping the U.S. bypass its encryption locks on Farook’s iPhone would threaten the privacy of all its customers.
“While the government may argue that its use would be limited to this case, there is no way to guarantee such control,” Cook said, adding: “Ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.”
FBI Director James Comey has been slow to criticize U.S. technology executives over such concerns, describing them as “good people” who share the bureau’s commitment to public safety.
But in recent months, he suggested companies have the technical capability to help the FBI but don’t have a business interest.
“Lots of good people have designed their systems and their devices so that judges’ orders cannot be complied with, for reasons that I understand,” Comey told the Senate Judiciary Committee one week after the California shootings. “I’m not questioning their motivations. The question we have to ask is, should they change their business model?”
