In an unusually blistering on-the record statement, Apple’s general counsel described the government’s latest court filing in the San Bernardino iPhone case as a “cheap shot,” part of a smear campaign, “an unsupported, unsubstantiated effort to vilify Apple.” Bruce Sewell, who recently testified in front of Congress to defend Apple’s position, told reporters Thursday evening, “In 30 years of practice, I don’t think I’ve ever seen a legal brief more intended to smear the other side. … The tone of the brief reads like an indictment.”
Sewell’s comments followed the government’s latest filing, urging Judge Sheri Pym to reject Apple’s challenge and compel the company to help the FBI break into the encrypted device. The Department of Justice insists that information investigators are seeking in an iPhone used by Syed Rizwan Farook could not have been obtained through a backup of the device — a method lost to the FBI after the agency ordered the password linked to the phone be reset.
Last month, Pym ordered Apple to design new software that would bypass and disable several security features of the iPhone, making it easier to access by investigators who believe the device may hold clues pointing to co-conspirators involved in the San Bernardino shooting rampage last year. Apple has formally challenged the order, but government lawyers insist that Apple must comply.
“To do this in as a brief before a magistrate judge just shows the desperation the DOJ now feels,” Sewell told reporters. “We would never respond in kind, but imagine Apple asking a court whether the FBI could be trusted because ‘there is a real question about whether J. Edgar Hoover ordered the assassination of Kennedy — see conspiracytheory.com as our evidence.’”
In a sworn statement included as part of the government’s filing, an FBI technician said that even had a backup of the device been accessible, an important subset of information would not have been available to investigators. Christopher Pluhar, a computer forensics examiner with the FBI, said that based on previous backups of Farook’s iPhone, the settings to restore mail, photos, and notes, were all turned off.
In another sworn statement, Stacey Perino, an electronics engineer with the FBI, said that “the device would not connect to a Wi-Fi network until the passcode was entered, and even if the device could be forced to perform an iCloud backup, the user data would still be encrypted.”
Government lawyers maintain that the FBI has exhausted its technical capability, and that Apple alone possesses the power to penetrate the iPhone’s defenses.
As part of Apple’s legal challenge, the company claims it has cooperated with the FBI from the very start of the investigation. Apple executives have said, and court documents reveal, that the iPhone maker proposed four different ways to recover the information the government seeks without building an encryption “backdoor.” One of those methods would have involved connecting the confiscated iPhone to a known Wi-Fi network, triggering an iCloud backup.
The possibility of obtaining information from a backup was extinguished, however, when at the direction of the FBI, the Apple ID password was reset within 24 hours of the government taking possession of the device.
During a congressional hearing last week, FBI Director James Comey described the password reset as an FBI error. “There was a mistake made in the 24 hours after the attack,” Comey told lawmakers, referring to efforts to secure the data held inside the iPhone.
But Comey and the Justice Department have also acknowledged that even had the backup recovery method been available, iCloud storage would not have restored all of the phone’s data. “Even if the password had not been changed and Apple could have turned on the auto-backup and loaded it to the cloud, there might be information on the phone that would not be accessible without Apple’s assistance,” the Justice Department said, in a statement issued last month.
The government’s new court filing echoes that argument and takes it further: Crucial information from Farook’s iPhone was not able to be backed up at all, whether or not the password reset took place. In a Thursday call with reporters, DOJ officials argued that even had an iCloud backup been possible, it’s not an adequate substitute for unlocking the device, since certain categories of evidence reside only on iPhones.
In the ongoing dispute between Apple and the FBI, both parties are trying hard to define the consequences of the court case. For Apple, the investigation is not simply about hacking into one device, but jeopardizing the security of every other iPhone and the security of its customers across the globe. The government, on the other hand, maintains that while broader national security and consumer privacy issues are at play, the request to get into the San Bernardino iPhone revolves around one device, and one terrorism investigation, and nothing more.
Below, the government’s latest brief.