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Apple Asks Judge to Vacate Order in San Bernardino iPhone Case

Apple has filed a motion to vacate a California magistrate judge’s order that would make the tech giant help FBI agents access an iPhone.
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Apple has filed a motion to vacate a California magistrate judge’s order that would force the tech giant to help FBI agents access an iPhone used by San Bernardino massacre shooter Syed Farook.

The smartphone maker argues in their somewhat user-friendly brief written for a wide audience that the court order — which was followed days later by a Justice Department motion asking the court to compel Apple to comply — would violate its First and Fifth Amendment rights, as well as do serious damage to the security of the company’s products.

“Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote,” attorneys for the company write in their motion filed in the Federal District Court for the Central District of California on Thursday. The company has gathered a star legal team that includes Theodore Boutrous and Ted Olson, who previously worked together fighting California’s Proposition 8, which banned gay marriage.

The company’s response has been expected as Apple and the government have engaged in an escalating PR war since the court order was issued on Feb. 16.

Related: Why Are Apple and the FBI Battling Over an iPhone?

“The government says: ‘Just this once’ and ‘Just this phone.’ But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other Courts,” Apple goes on to say in the new motion.

“And as news of this Court’s order broke last week, state and local officials publicly declared their intent to use the proposed operating system to open hundreds of other seized devices—in cases having nothing to do with terrorism.”

Manhattan District Attorney Cyrus Vance has already said that he has 175 Apple devices it wants to unlock in investigations, and at a congressional hearing on worldwide threats earlier on Thursday, FBI Director James Comey said that the final ruling in the California case will be “instructive” for other courts. Comey repeated the sentiment in a separate hearing later the same day.

Apple also sketches an outline in the motion of the assistance it provided to the FBI in the immediate aftermath of the December attacks in San Bernardino that left 14 people dead.

The company says it already "responded immediately" to requests for help from federal agents, and worked with the bureau around the clock providing "valuable informal assistance."

But building the tool the government envisions in its court order — which would bypass security features on the iPhone and allow agents to enter passwords over and over until they get it right — would require ten Apple employees including engineers dedicating most of their time over a period of two weeks to a month, the company argues.

The newly designed tool would then need to go through Apple’s assurance and security testing processes, as well as troubleshooting. Apple says that would place an undue burden on the company.

“No operating system currently exists that can accomplish what the government wants, and any effort to create one will require that Apple write new code, not just disable existing code functionality,” Apple argues in the motion. “And if the new operating system has to be destroyed and recreated each time a new order is issued, the burden will multiply.”

The company also knocks investigators for changing the iCloud password associated with the phone used by Farook without consulting Apple.

The smartphone is actually owned by the San Bernardino County's health department, and Apple says that the decision to change the iCloud password prohibited any further updates from the device to the iCloud — an action that “could have obviated the need to unlock the phone and thus for the extraordinary order the government now seeks.”

Related: Solid Support for Apple in iPhone Encryption Fight, New Poll Finds

Apple contends in the motion that the court order violates the company’s First Amendment rights by compelling it to write code that goes against its privacy and security values. The company also argues that the order violates its Fifth Amendment rights by requiring it to write a “Government OS” that would affect the integrity of the company’s products.

Apple executives said in a conference call with reporters on Thursday that the brief was intentionally written in approachable language so that it would be read by a wider audience. The executives (it was a condition of the call that they not be named or quoted directly) said they believe it is important the broad public debate around the case continue.

In its motion, Apple argues that if the court allows the government to compel the company to write code in this case, that could well lead to other instances where security capabilities are weakened because investigators believe they are in the pursuit of valuable information.

“If Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user? Nothing.”