Apple Moves To Vacate FBI’s Court Order, Says It’s Unconstitutional

CREDIT: AP Photo/Richard Drew, File

Apple CEO Tim Cook

Apple submitted a motion to vacate the FBI’s court order to unlock an iPhone that belonged to one of the San Bernardino shooters Thursday, arguing that it is unconstitutional.

According to court documents, Apple is asserting that the government would violate the company’s First Amendment and Fifth Amendment rights if it were forced to create a digital tool to circumvent the iPhone’s passcode security system.

The government demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance. The All Writs Act, first enacted in 1789 and on which the government bases its entire case, “does not give the district court a roving commission” to conscript and commandeer Apple in this manner.

Apple enhanced its mobile operating system iOS 8 to automatically encrypt data stored on iPhones. The changes also included a safeguard where an iPhone’s data would be erased if the passcode was incorrectly entered 10 times. The company claims in its motion that granting the government’s request and creating a “back door” to circumvent the 10-try limit would “make it easier to unlock the iPhone by ‘brute force,’ trying thousands or millions of passcode combinations with the speed of a modern computer.”

Apple contends that creating the digital workaround would put an “unprecedented burden” on the company and is a form of compelled speech, where an entity is forced to express a belief or divulge information it doesn’t want to. The motion also states that following the Justice Department’s court order would violate the company’s Fifth Amendment right to due process and constitutes an “arbitrary deprivation of [its] liberty by government.”

Apple CEO Tim Cook has been vocal about the company’s position on privacy and security issues. In a memo to employees, Cook said:

As individuals and as a company, we have no tolerance or sympathy for terrorists. When they commit unspeakable acts like the tragic attacks in San Bernardino, we work to help the authorities pursue justice for the victims. And that’s exactly what we did.

This case is about much more than a single phone or a single investigation, so when we received the government’s order we knew we had to speak out. At stake is the data security of hundreds of millions of law-abiding people, and setting a dangerous precedent that threatens everyone’s civil liberties.