Justice Dept. questions Apple’s motives in refusing to help FBI

Reporting from WASHINGTON —  The battle over Apple’s refusal to give the FBI the tools to unlock a terrorist’s smartphone escalated sharply Friday when the government urged a federal judge to immediately compel the tech giant to comply, arguing that it appears more concerned with marketing strategy than national security.

In a 35-page filing aimed at public opinion as much as the judge, Justice Department lawyers questioned Apple’s motivation for defying U.S. Magistrate Judge Sheri Pym’s order this week to help the FBI open Syed Rizwan Farook’s encrypted iPhone 5c.

The government argued Friday that Apple Chief Executive Tim Cook’s public Feb. 16 letter declaring, “We oppose this order,” should be taken as the company’s response.

Apple’s refusal, they wrote, “appears to be based on its concern for its business model and public brand marketing strategy,” not a legal rationale.

Apple technicians told investigators they could write the software the FBI wants to unlock Farook’s phone, and technology providers previously have written code to comply with subpoenas and court orders, according to the filing.

“Apple rejected the government’s request, although it conceded that it had the technical ability to help,” the filing states. It also says Apple’s public statements have been misleading.

Pym gave Apple until next Friday to respond, and set a hearing for March 22 in U.S. District Court for Central District of California in Riverside.

In a conference call with reporters, senior Apple executives, speaking on condition that they not be identified or quoted, said the government’s motion was designed to get media attention. They described the FBI’s request as overreaching by the government.

The executives denied that the decision to fight Pym’s order was about marketing, insisting they are acting to protect customers’ privacy. Complying, they said, would create a back door to breach the iPhone’s security features.

It’s unclear what help, if any, the contents of Farook’s phone might provide investigators. Nearly seven weeks of potential messages, texts, photos and data are missing — from Oct. 19, when Farook last uploaded his phone to iCloud, to Dec. 2, when he carried out a shooting rampage at the Inland Regional Center in San Bernardino.

No evidence has surfaced so far to indicate Farook and his wife, Tashfeen Malik, were in contact with terrorists, or had received outside support, before the attack, which left 14 people dead. The couple were later killed in a shootout with police.

Apple and its supporters say the dispute isn’t over the unknown contents of one phone, but about the government trying to establish a precedent that it can force a company to hack its customers’ devices.

That could open floodgates for requests from local, state and federal prosecutors, they warn, and cripple customers’ confidence in Apple products, especially in lucrative overseas markets where distrust of government surveillance is higher.

Apple’s advocates fear that giving in to the FBI now ultimately would help criminal hackers and authoritarian governments, which might use the software to trace secret communications of political opponents and human rights activists.

The issue inevitably landed in the presidential race, as GOP candidate Donald Trump said Americans should not buy Apple products until the company agrees to help the FBI unlock Farook’s phone.

“What I think you ought to do is boycott Apple until such time as they give that security number,” he said Friday.

More broadly, the escalating dispute with Silicon Valley reflects the government’s struggle to keep up with the challenge of obtaining evidence from encrypted cellphones and apps.

Both have grown far more popular since the 2013 disclosures of widespread government surveillance by former National Security Agency contractor Edward Snowden.

Apple began encrypting new cellphones by default in September 2014.

The case also revealed a rift inside the Obama administration over how to balance privacy and national security when it comes to high tech.

For more than a year, in meetings in the Situation Room in the basement of the West Wing, FBI Director James B. Comey pleaded with White House officials to pressure Silicon Valley to do more to help investigators decode encrypted messages in criminal and terrorism cases.

The response: more closed-door meetings with Apple, Google and other high tech companies, but little apparent progress.

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Comey’s frustration was clear when the Justice Department decided on its own to go to court in the San Bernardino case.

“What you are seeing here is a unilateral act to get done what they think they need to get done,” said an administration official who spoke on condition of anonymity to describe the deliberations. “It is a milestone moment. It is a break from the dialogue and the desire to keep it friendly.”

On one side of the debate inside the administration were White House advisors who favored using quiet pressure to persuade Cook and other tech executives to cooperate.

That approach has borne fruit, they say. Over the last year, tech companies have shut down social media accounts used by Islamic State, handed over subpoenaed material that suspects had loaded on “cloud” servers, and given other crucial help.

But members of President Obama’s national security team wanted more.

Together with state and federal prosecutors around the country, they viewed tech companies as making money while protecting terrorists, kidnappers, pornographers and others who use encryption to hide illegal schemes.

Comey warned the Senate Judiciary Committee last fall that the FBI was in danger of “going dark,” noting that investigators could not read 109 encrypted messages that a gunman had sent to an “overseas terrorist” hours before he tried to attack a prophet Muhammad cartoon contest in Garland, Texas, last May.

On Jan. 8, top tech executives heard pleas for help on encryption during a meeting in San Jose attended by White House Chief of Staff Denis McDonough, Atty. Gen. Loretta Lynch, Director of National Intelligence James Clapper and Comey.

When Apple and its allies refused to budge, Comey hinted at a congressional hearing that the FBI’s patience had frayed.

“We still have one of [the San Bernardino] killer’s phones that we have not been able to open,” he told the Senate Intelligence Committee last week. “It’s been over two months now, and we’re still working on it.”

The new details were intended to warn Apple that the FBI might go further if Apple didn’t give more help in the case.

“I would like people to comply with court orders, and that’s the conversation we’re trying to have,” he said.

Other critics soon chimed in.

In New York, the Manhattan district attorney’s office said its investigators are locked out of more than 175 Apple devices that could provide crucial evidence in criminal cases.

“The problem is getting worse over time,” said Joan Vollero, spokeswoman for Cyrus R. Vance Jr., the district attorney.

After the San Bernardino shooting, Apple provided the FBI with data from Farook’s work iPhone that he had backed up remotely. But he did not save to iCloud for weeks before the shooting, and investigators believed he may have sought to hide location data, photos or messages.

For weeks, Apple technicians worked with the FBI’s Orange County Regional Computer Forensics Laboratory to explain the password protection on the phone, and the feature that would automatically erase its memory after 10 incorrect password attempts.

Apple recommended trying to back up to Farook’s iCloud account over the Internet, but investigators could not. Shortly after the attack, a San Bernardino County employee apparently had reset the password remotely. That made it impossible to initiate the auto-backup feature later, according to a footnote in Friday’s filing.

With that pathway closed, FBI officials concluded Apple could write software to disable the auto-erase setting, and make it possible to try password combinations until the phone opened. Apple refused.

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In January, federal prosecutors drafted a motion to compel Apple to act but held back on filing it in court, hoping Apple would comply. They also feared making the request public would alert would-be criminals to the FBI’s limitations and the phone’s encryption.

The court filing Friday made clear prosecutors have overridden those concerns — even if their legal argument remains untested.

“In the court of public opinion, a dead terrorist whose phone might have connections to more terrorists is pretty attractive from the standpoint of prosecution, but the legal question is not made easier because of that,” Ryan Calo, an assistant law professor at the University of Washington in Seattle and an expert on privacy law, said in a phone interview.

No court has ruled on whether a tech company could be forced to find a way around its own security features, Calo said.

“What is being asked to be done here on the scale of things is pretty invasive,” Calo said.

“They are asking for a lot, not a little.”

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Times staff writers Paresh Dave and Maura Dolan in Los Angeles contributed to this report.

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