Device requests for the first half of 2015.
Apple’s lawyers rejected the government’s claim Thursday that the company provides “special accommodations” to China. In its latest filing in the San Bernardino, California, iPhone case, Apple insisted that it follows the same security protocols in every country, and challenged the Justice Department’s “misleading statistics,” which the iPhone maker believes unfairly portrayed the company as a pushover to foreign governments.
A key sparring point in Apple’s fight with the U.S. government has been the implications any precedent arising from it might hold for Beijing and Moscow. Apple has argued that if the FBI prevails, and the company is forced to comply with the court order and create new security suppressing software, similar demands might pour in from foreign powers.
The Justice Department, however, has dismissed these concerns. In fact, in the government’s latest filing last week, it cast doubt on whether Apple resists data requests from foreign governments at all. Pointing to Apple’s operations in China, where data for Chinese customers is stored locally, the Justice Department stated, “Apple appears to have made special accommodations in China as well.”
Apple’s lawyers blasted this claim in a call with reporters Thursday evening, describing the government’s statements on China as promoting a false narrative. Craig Federghi, Apple’s senior vice president of software engineering, offered a sworn statement as part of the company’s filing, rejecting the claim as well. “Apple uses the same security protocols everywhere in the world,” Federghi said. “Apple has never made user data, whether stored on the iPhone or in iCloud, more technologically accessible to any country’s government. We believe any such access is too dangerous to allow.”
While Apple does store the data of Chinese customers on servers located in China, it operates that way to boost network efficiency based on geography, and is unrelated to government access, Apple attorneys said during the same call. The data stored in China is encrypted, they added, and the decryption key is held in the United States.
Citing data from Apple’s most recent transparency report, covering government information requests for the first half of 2015, the U.S. government had said that China requested information linked to more than 4,000 devices, with Apple providing at least some data in 74% of those requests.
The Justice Department pointed to those figures to argue that Apple has assisted foreign governments many other times, and that the company should therefore also comply with a court order forcing it to help the FBI unlock an iPhone used by one of the attackers in the assault in San Bernardino that killed 14 people in December.
But in its filing Thursday, Apple accused the government of misconstruing those figures.
“Contrary to the government’s misleading statistics, which had to do with lawful process and did not compel the creation of software that undermines the security of its users, Apple has never built a back door of any kind into iOS, or otherwise made data stored on the iPhone or in iCloud more technically accessible to any country’s government,” Apple’s lawyers wrote.
According to Apple’s most recent transparency report, the Chinese government did, in fact, ask for information related to 4,398 devices, but, the attorneys said, Apple responds to the requests of Beijing exactly the same way it does London, Berlin, and Washington. For comparison, the United States requested information from Apple linked to 9,717 devices — more than twice as many as China — and Apple complied with 81% of those requests, according to the same report.
What’s more, the transparency report states that the vast majority of government information requests for devices are related to theft. South Korea, for instance, tops the Asian Pacific charts with 37,565 devices, 30,000 of which were linked to a police report for a massive iPhone heist, Apple’s attorneys said.
While Apple states in its transparency report that the “vast majority” of device requests stem from law enforcement seeking stolen devices, Apple does not indicate in its report the number of theft related requests for China or any other country.
From Apple’s perspective, those previously granted information requests are part of its system of compliance with lawful searches, but they differ drastically from what the FBI is asking for in San Bernardino: new software that would disable several security features built into the iPhone.
American lawmakers, academic experts, and even FBI Director James Comey acknowledge that the outcome of the San Bernardino investigation may influence China’s policy on special access to encrypted data. But the Justice Department, including its chief, Attorney General Loretta Lynch, maintains that what’s at stake here is one terrorism case, and justice for the San Bernardino victims — not some speculative harm of far-flung foreign policy.
Sen. Dianne Feinstein, an outspoken critic of Apple, has pledged to introduce legislation that would force the company to comply with the court order if it continues to defy the FBI. “I can’t worry about what China’s going to do,” she told BuzzFeed News. “I worry about what we do, and that no company should be above our law.”
The Justice Department echoed her remarks in its filing. “Lawful process in America cannot be confined by potential lawless oppression elsewhere merely because a corporation chooses to manufacture and market its products globally, without regard to its host countries’ legal regimes.”
But Rep. Ted Lieu, who has vowed to oppose any encryption-weakening bills, and has introduced legislation that would ban states from limiting encryption technology sees it differently. “We hurt America’s ability to tell China to respect privacy and not intrude on U.S. businesses when we force our own companies to undermine encryption security,” he told BuzzFeed News. “This court order could very well have negative global implications for U.S. national security, U.S. businesses and international privacy rights.”
Adam Segal, the director of the Council on Foreign Relations cyber and digital program, and author of the new book The Hacked World Order, told BuzzFeed News that China, like the United States, is concerned that robust consumer encryption will weaken their law enforcement capabilities. Security ministers in Beijing, however, will pursue their agenda regardless of the outcome in San Bernardino, he said. But “given the criticism that US officials levy at China for freedom of information, surveillance, dissidents, and protesters, you don’t want to unintentionally give the party cover for what they are doing.”
FBI Director Comey told lawmakers earlier this month that he has “no doubt there are international implications.” When asked by a member of the House Judiciary Committee whether he thought about China and global encryption policy before the FBI moved against Apple, he said, “I don’t remember thinking about it in the context of this particular investigation. But I think about it a whole lot, broadly, which is one of the things that makes it so hard.”