Obama administration officials said Thursday that they “don’t have an obligation” to try to break into an Apple smartphone by getting help from the intelligence community, an argument they hope will bolster its case that Apple should do the job for them.
Government attorneys pointed to a New York case in which Apple was ordered to help authorities unlock one of the company’s devices. The company suggested that some elements of the intelligence community, like the National Security Agency, had the ability to do the job on their own.
In response, the government said that “federal prosecutors don’t have an obligation to consult the intelligence community in order to investigate crime.”
Apple’s argument that the intelligence community should do it was made in a motion contesting an earlier order that the company help authorities break into an iPhone used by perpetrators in the December terrorist attack in San Bernardino, Calif. The Federal Bureau of Investigation has insisted it can’t figure out how to get the job done without Apple’s assistance.
“The government has not made any showing that it sought or received technical assistance from other federal agencies with expertise in digital forensics,” the company’s attorneys pointed out, “which assistance might obviate the need to conscript Apple to create the back door it now seeks.”
Apple’s attorneys also argued that vast incompetence was adding to the government’s alleged problems, and pointed out that public guidance on iPhone usage was ignored when officials inadvertently shut down one method of accessing the phone’s contents.
“Without consulting Apple or reviewing its public guidance regarding iOS, the government changed the iCloud password associated with an attacker’s account, thereby preventing the phone from initiating an automatic iCloud back-up,” Apple noted.
The point is significant, because precedent suggests that Apple cannot be compelled to assist the government unless the company’s participation is imperative and there is “no conceivable” alternative. Apple argued that standard hadn’t been met, writing that the government “has failed to demonstrate that the requested order was absolutely necessary to effectuate the search warrant.”
Those supporting Apple’s position have suggested authorities do have the ability to access the device in question, but that law enforcement officials are trying to set a precedent of forcing the company to get involved more often.
FBI Director James Comey acknowledged that possibility on Thursday, telling a congressional panel that the case could indeed “set a precedent” and “guide how other courts handle similar requests.”
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A court is set to consider Apple’s appeal on March 22.
