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 The company on Thursday was granted three additional days by the
court to file a response to the order. Apple will now have until
Feb. 26 to send a reply, a person familiar with matter told Reuters.
The tech giant and the Obama administration are on track for a major
collision over computer security and encryption after a federal
magistrate judge in Los Angeles handed down an order on Tuesday
requiring Apple to provide specific software and technical
assistance to investigators.
Apple Chief Executive Tim Cook called the request from the Federal
Bureau of Investigation unprecedented. Other tech giants such as
Facebook Inc <FB.O>, Twitter Inc <TWTR.N> and Alphabet Inc's <GOOGL.O>
Google have rallied to support Apple.
Apple has retained two prominent, free-speech lawyers to do battle
with the government, according to court papers: Theodore Olson, who
won the political-speech case Citizens United v. Federal Election
Commission in 2010, and Theodore Boutrous, who frequently represents
media organizations.
Government lawyers from the U.S. Justice Department have defended
their request in court papers by citing various authorities, such as
a 1977 U.S. Supreme Court ruling that upheld an order compelling a
telephone company to provide assistance with setting up a device to
record telephone numbers.
The high court said then that the All Writs Act, a law from 1789,
authorized the order, and the scope of that ruling is expected to be
a main target of Apple when it files a response in court by early
next week.
But Apple will likely also broaden its challenge to include the
First Amendment's guarantee of speech rights, according to lawyers
who are not involved in the dispute but who are following it.
Compared with other countries, the United States has a strong
guarantee of speech rights even for corporations, and at least one
court has ruled that computer code is a form of speech, although
that ruling was later voided.
Apple could argue that being required to create and provide specific
computer code amounts to unlawful compelled speech, said Riana
Pfefferkorn, a cryptography fellow at Stanford University's Center
for Internet and Society.
The order against Apple is novel because it compels the company to
create a new forensic tool to use, not just turn over information in
Apple's possession, Pfefferkorn said. "I think there is a
significant First Amendment concern," she said.
A spokesman for the U.S. Attorney's Office in Los Angeles declined
to comment on the possible free-speech questions on Thursday.
A speech-rights argument from Apple, though, could be met with
skepticism by the courts because computer code has become ubiquitous
and underpins much of the U.S. economy.
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"That is an argument of enormous breadth," said Stuart Benjamin, a
Duke University law professor who writes about the First Amendment.
He said Apple would need to show that the computer code conveyed a
"substantive message."
In a case brought by a mathematician against U.S. export controls, a
three-judge panel of the 9th U.S. Circuit Court of Appeals, which
covers California, found in 1999 that the source code behind
encryption software is protected speech. The opinion was later
withdrawn so the full court could rehear the case, but that
rehearing was canceled and the appeal declared moot after the
government revised its export controls.
The FBI and prosecutors are seeking Apple's assistance to read the
data on an iPhone 5C that had been used by Rizwan Farook, who along
with his wife, Tashfeen Malik, carried out the San Bernardino
shootings that killed 14 people and wounded 22 others at a holiday
party.
U.S. prosecutors were smart to pick the mass shooting as a test case
for an encryption fight with tech companies, said Michael Froomkin,
a University of Miami law professor. That is because the shooting
had a large emotional impact while also demonstrating the danger
posed by armed militants, he said.
In addition, the iPhone in dispute was owned not by Farook but by
his employer, a local government, which has consented to the search
of the iPhone. The federal magistrate who issued the order, Sheri
Pym, is also a former federal prosecutor.
"This is one of the worst set of facts possible for Apple. That's
why the government picked this case," Froomkin said.
Froomkin added, though, that the fight was enormously important for
the company because of the possibility that a new forensic tool
could be easily used on other phones and the damage that could be
done to Apple's global brand if it cannot withstand government
demands on privacy. "All these demands make their phones less
attractive to users," he said.
(Reporting by David Ingram and Alison Frankel in New York, Dan
Levine in San Francisco; Editing by Jonathan Weber, Lisa Shumaker
and Gopakumar Warrier)
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