Apple Files Motion To Dismiss FBI’s iPhone Request, Citing First Amendment Rights

Apple has filed a motion asking U.S. Magistrate Judge Sheri Pym to dismiss an FBI order compelling Apple to decrypt the iPhone 5C used by one of the San Bernardino, California, shooters. The case is not about unlocking a single iPhone, Apple says, warning, “Once the floodgates are open, they cannot be closed for similar orders.”

Apple said the government’s request, which seeks to force Apple to build new software that would enable the FBI to subvert passcode security measures implemented by its iOS 9 operating system, constitutes a violation of the company’s First Amendment rights. The U.S. Department of Justice has sought to convince a magistrate judge that, under the All Writs Act, Apple must do everything in its power to construct an operating system that will be used only to break the phone’s encryption. Apple CEO Tim Cook and a growing body of voices have warned this will be only the first such request.

“Finally, given the government’s boundless interpretation of the All Writs Act, it is hard to conceive of any limits on the orders the government could obtain in the future,” Apple’s motion Thursday stated. “For example, if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user? Nothing.”

Apple has called on Congress to weigh in on the matter, saying it’s up to legislators to determine the course of the war between law enforcement and encryption technology. Apple filed the brief one day ahead of Friday's deadline, and hours after FBI Director James Comey told a congressional panel this case was “unlikely to be a trailblazer.”

Comey and Apple Senior Vice President and General Counsel Bruce Sewell will testify Tuesday at a congressional hearing on encryption issues before the U.S. House of Representatives Judiciary Committee.