Apple today said that the government should create an expert panel to discuss the implications of the FBI's demand that the company help it access an iPhone used by one of the people accused of killing 14 in California nearly three months ago.
In a FAQ posted to its website early Monday, Apple added to the back-and-forth of last week, when both it and the government traded court filings, statements and heated rhetoric. Along with the call to bring legislators into the controversy, Apple said that the FBI should withdraw its call for assistance in getting into an iPhone used by Syed Rizwan Farook, who with his wife Tashfeen Malik, killed 14 in San Bernardino, Calif., on Dec. 2 before they died in a shootout with police.
"We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology, and civil liberties to discuss the implications for law enforcement, national security, privacy, and personal freedoms," the FAQ stated. "Apple would gladly participate in such an effort."
Apple's push of the debate to others was what one attorney last week said may have been the company's intent when it rejected the government's demand.
"Is [Apple's] end game here the Congress? This has been brewing in Congress for some time," said Robert Cattanach, in an interview last week. Cattanach is a partner at the law firm Dorsey & Whitney who previously worked as a trial attorney for the U.S. Department of Justice (DOJ).
In its motion filed Feb. 16 -- which generated an order by a federal judge that Apple comply -- the DOJ cited the All Writs Act when it demanded that Apple help the agency get into Farook's iPhone 5C. The All Writs Act was part of 1789 legislation that established the U.S. judicial system. It has been amended several times since then, with the most recent major changes made in 1948.
Increasingly, the DOJ has relied on the All Writs Act to force third parties to help it obtain information, including that stored on smartphones. According the American Civil Liberties Union, the government has used the All Writs Act at least 70 times previously to get Apple to unlock older iPhones.
In Monday's FAQ, Apple admitted that it was technically feasible to do what the FBI wanted, but argued that it was a bad idea. "Yes, it is certainly possible to create an entirely new operating system to undermine our security features as the government wants. But it's something we believe is too dangerous to do," Apple said.
Apple's admission matched what the DOJ said in a motion filed Friday, and what security experts said was possible earlier.
The government has contended that there may be information on Farook's iPhone that will help in the terrorism investigation, but he locked the device with a passcode. The FBI wants Apple to create a modified version of iOS that disables an auto-erase feature and removes the forced delays between passcode guesses. It would then conduct a brute-force passcode crack from a personal computer at high speeds.
"In plain English, the FBI wants to ensure that it can make an unlimited number of PIN guesses [and] that it can make them as fast as the hardware will allow," said Dan Guido, co-founder and CEO of Trail of Bits, a New York City-based security firm, last week.
On Sunday, FBI Director James Comey issued an online statement where he said Apple owed it to the San Bernardino victims, their families, and survivors to help in the probe of the iPhone. "Maybe the phone holds the clue to finding more terrorists. Maybe it doesn't. But we can't look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead," Comey said.
Comey also said neither Apple nor the FBI should set policy related to privacy and national security. "[This case] does highlight that we have awesome new technology that creates a serious tension between two values we all treasure -— privacy and safety," Comey wrote. "That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before."
Some, including Cattanach, say that the FBI purposefully selected the San Bernardino case -- with its terrorism implications -- to get a court to order Apple to help under the All Writs Act and sway public opinion its way. "This was a very strategic decision by the FBI," said Cattanach. "I think it was very calculated on the part of the FBI: 'Let's get a win here.' "
Apple has faced similar demands from the government under the All Writs Act, as the ACLU noted. In fact, the Cupertino, Calif., company first signaled its concern about the law last October, when the DOJ asked a federal court in New York to force Apple to assist in accessing an alleged drug dealer's iPhone.
Even after the defendant pleaded guilty, Apple argued that the matter was not moot, and that the issue about Apple's assistance should continue to be heard by the court. "Apple has also been advised that the government intends to continue to invoke the All Writs Act in this and other districts in an attempt to require Apple to assist in bypassing the security of other Apple devices in the government's possession," wrote Marc Zwillinger, an outside lawyer for Apple, in a letter to the New York court on Feb. 12.
On Friday, the federal judge in California who ordered Apple to assist authorities set the schedule of additional motions she will accept and a March 22 hearing date for the parties' oral arguments. Apple must file any objections to the order by Friday, while others may file amicus briefs supporting either side by March 3.
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