WASHINGTON: Apple Inc has struck back in court against a US government demand that it unlock an encrypted iPhone belonging to one of the San Bernardino shooters, arguing such a move would violate its free speech rights and override the will of Congress.

The high-stakes fight between Apple and the government burst into the open last week when the Federal Bureau of Investigation (FBI) obtained a court order requiring Apple to write new software and take other measures to disable passcode protection and allow access to shooter Rizwan Farook’s iPhone.

The clash has driven to the heart of a long-running debate over how much law enforcement and intelligence officials should be able to monitor digital communications.

Arguing that the court should throw out the order that it issued last week, Apple said in its brief on Thursday that software was a form of protected speech, and thus the Justice Department’s demand violated the constitution.

“The government’s request here creates an unprecedented burden on Apple and violates Apple’s First Amendment rights against compelled speech,” it said.

Apple also contended that the court was overstepping its jurisdiction, noting that Congress had rejected legislation that would have required companies to do the things the government is asking Apple to do in this case.

“No court has ever authorised what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the constitution forbids it,” Apple said in its filing.

The government argues that the All Writs Act, a broad 1789 law which enables judges to require actions necessary to enforce their own orders, compels Apple to comply with its request.

But Apple argued in its filing that prosecutors wrongly applied a key US Supreme Court case, which involved a telephone company, to the San Bernardino situation. Since Apple is not a utility, and because Congress declined to force companies like Apple to build “backdoors” into their products, Apple said it should not be forced to help the government hack into the San Bernardino iPhone.

Department’s response

The Justice Department won the order from the federal court in Riverside, California, last week without the company present. The judge allowed Apple to respond in the brief on Thursday, and a hearing is scheduled for next month.

In a statement responding to Apple’s filing, the Justice Department said its approach to prosecuting crimes had not changed.

“The change has come in Apple’s recent decision to reverse its longstanding cooperation in complying with All Writs Act orders,” department spokesperson Melanie Newman said.

If the San Bernardino order is upheld, Apple said, it could leave individuals and business vulnerable to an unlimited array of government directives.

Published in Dawn, February 27th, 2016

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