U.S. pushes back against Apple: Writing code is not free speech

DOJ: Apple's code is not free speech

The U.S. government fought back Thursday against Apple in its standoff over access to an iPhone used by San Bernardino terrorist Syed Farook.

In a brief filed in federal court, the Department of Justice disputed Apple’s argument that writing computer code is protected by the First Amendment. It also claims that Apple and the tech firms that support the company are raising unnecessary alarm bells about privacy.

“The government and the community need to know what is on the terrorist’s phone, and the government needs Apple’s assistance to find out,” the brief states.

The FBI is asking a federal court to uphold an order issued last month that would force Apple to break into the iPhone. A court hearing is scheduled for March 22.

“(T)he order compels conduct — namely, the removal of barriers from Farook’s iPhone — with an incidental effect on ‘speech,'” the DOJ wrote. “That does not amount to a First Amendment violation.”

Government lawyers argue that “how Apple’s software is engineered” and “code determining how many retries a user is permitted before the data on an iPhone is permanently lost” do not qualify as speech that is protected by the Constitution.

Apple (AAPL, Tech30) argues that the government is asking it to do something unprecedented: To help it claim data from the phone by writing code that would allow the FBI to hop over its core security features.

Furthermore, Apple says that breaking into the phone would create a backdoor that could be exploited by hackers. And it could encourage other entities and governments to demand access.

The FBI insists that its request is limited and a necessary step in its continuing investigation into the shootings, which claimed 14 lives.

“Apple desperately wants — desperately needs — this case not to be ‘about one isolated iPhone,'” the Justice Department argued Thursday. “But there is probable cause to believe there is evidence of a terrorist attack on that phone, and our legal system gives this court the authority to see that it can be searched pursuant to a lawful warrant.”

Facebook and WhatsApp might be the next Apple in encryption fight

The Justice Department also responded to Apple’s claim that the FBI’s request is an unreasonable burden. Earlier in the case, Apple said it would take “six to ten Apple engineers and employees dedicating a very substantial portion of their time” to comply with the court order.

“Apple is one of the richest and most tech-savvy companies in the world, and it is more than able to comply with the (court) order,” The Justice Department wrote, saying Apple had income of $200 billion last year — “more than the operating budget for California.”

Touching on a particularly sensitive undercurrent in the court fight, the government said it was “misleading” for Apple to argue that the FBI’s request could make it harder to resist data demands by foreign governments. It even claimed the “public record raises questions” about how hard Apple resists such demands now, but it offered no hard evidence of that.

Related: Apple says complying with FBI will hurt everyone but terrorists

Bruce Sewell, Apple general counsel, told reporters on a conference call Thursday that the Justice Department’s court filing “reads like an indictment” and is “deeply offensive.”

Highlighting the increasingly heated rhetoric now being used by both sides, the company’s top lawyer described the government’s conduct in terms like: “cheapens the debate” and “thrown all decorum to the winds.”

Sewell said the government was unfairly alleging that Apple “has a different and sinister relationship with China.” The claim “shows the desperation that the Department of Justice now feels,” he added.

He jokingly said the government’s allegation would be akin to Apple citing conspiracy theories in its court filings that J. Edgar Hoover may have had something to do with the assassination of John F. Kennedy.

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