SAN FRANCISCO — Apple has conceded that it can write the software that the FBI wants to unlock a terrorist’s iPhone, and technology providers in the past have been required to write code to comply with subpoenas and court orders, government lawyers said Friday.
Federal prosecutors also said in a written motion that Apple’s public statements on the matter have been misleading.
A court order this week demanding Apple’s compliance to help the
FBI hack into an iPhone in a terrorism case “does not give the government ‘the power to reach into anyone’s device’ without a warrant or court authorization,” prosecutors said in the court filing, “and it does not compromise the security of personal information.”
Instead, prosecutors contended, the software that the FBI wants Apple to write would remain in the custody of Apple and the company would have flexibility in how it provides assistance.
“No one outside Apple would have access to the software required by the order unless Apple itself chose to share it,” the government said.
The motion to compel Apple’s compliance said technology providers in the past have been required to “write some amount of code to gather information in response to subpoenas.”
Prosecutors also argued that the phone may contain “relevant, critical communications and data around the time” of the San Bernardino, California, terrorist attack and may be obtained only if the government is allowed to search the phone with Apple’s help.
The legal filing portrays the dispute as a battle between the FBI’s need to know communications between terrorists who killed 14 people and injured 22 others and the desire of a company to protect its reputation.
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 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.
Apple CEO Tim Cook has 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.”
Contending that “Apple is not above the law,” prosecutors said the company was “perfectly capable of advising customers that compliance with a discrete and limited court order ... is an obligation of a responsible member of the community.
“It does not mean the end of privacy.”
This report includes material from the Associated Press.