Apple plans to argue that a judge doesn’t possess the power to compel a company to create new software code to help authorities break into a locked iPhone, according to a report in The Los Angeles Times. The company also seeks to yank the issue out of the courts and thrust it into the hands of lawmakers.
Last week, a federal magistrate judge ordered Apple to create software that would help FBI agents hack the password code on an iPhone that once belonged to Syed Farook. According to authorities, Farook and his wife killed 14 people during the December terrorist attack in San Bernardino.
Apple refuses to help. The gadget maker argues that to create what is essentially a “master key” for all iPhones would place millions of innocent iPhone owners worldwide at risk of potentially dangerous intrusions. While it’s still early yet, the conflict could become a watershed case, one that helps define the balance between personal privacy rights and national defense.
On Tuesday, Apple’s attorneys laid out some of their legal strategy for news media. The lawyers say Magistrate Judge Sheri Pym made an unprecedented decision when she cited the 1789 All Writs Act to try and force Apple’s cooperation. According to the Times, the law enables judges to issue orders if other judicial avenues are unavailable. While the act has been used in the past to compel telephone companies to help investigators track calls, those telephone companies already possessed the infrastructure to do the tracking. In this case, Pym is requiring Apple to create a solution.
“There’s a significant legal question as to whether the All Writs Act can be used to order a company to create something that may not presently exist,” Michael Zweiback, the former cybercrimes chief for the U.S. Attorney’s Office in Los Angeles, told The New York Times.
Apple says that because the courts have already ruled that writing software is a form of speech, the company will argue that Pym’s order violates free-speech rights, according to the Los Angeles Times. In addition, Apple will seek to remove Pym and the courts from the equation by convincing lawmakers the issue should be addressed in Congress –where it just so happens Apple spends big lobbying dollars. In an election year, it should be interesting to see how Congress responds.