Federal prosecutors asked an attorney for victims of the San Bernardino terrorist attack to aid their case two days before they asked a judge to order Apple to unlock an iPhone used by one of the shooters, spurring a massive privacy battle, the Guardian has learned.
Stephen Larson, the lawyer for the victims, told the Guardian the office of the US attorney for the central district of California contacted him on 14 February with a request to file a brief asking Apple to aid in unlocking the phone.
On 16 February, the federal attorney, Eileen Decker, requested a federal magistrate, judge Sheri Pym, issue a warrant for the unlocked iPhone 5C. Pym provided it that day.
The involvement of representatives for the victims of the December assault shows the amount of preparation US authorities devoted to what all sides see as a landmark case on the boundaries between digital privacy and national security. Informal attempts to get Apple to unlock the phone for the FBI and San Bernardino County broke down before the warrant was issued.
The dispute has spread far beyond the courtroom. On Monday, 47 prominent writers urged the US Department of Justice to reverse course, away from compelling Apple to unlock the iPhone.
“[W]hat the FBI is asking Apple to do would erode the vital US values of free expression and privacy, and could endanger writers and human rights advocates in countries around the world,” wrote Robert Caro, Deborah Solomon and a host of other distinguished American and international writers in an open letter issued by the Pen American Center.
The Los Angeles-based Larson, who as Reuters first reported will file a brief on behalf of the victims early next month, said he did not represent the victims of the December shooting, in which married accomplices Syed Farook and Tashfeen Malik killed 14 people, prior to the 14 February request. The district attorney of San Bernardino county, not any federal official, connected him with survivors and relatives of the attack.
Larson praised Decker for her preparedness for the case and for recognizing that “the interests of the victims are broader than the interests of law enforcement”, he said.
“They have a lot of human-level questions: ‘Why was I targeted, why was my loved one targeted, why did this happen in San Bernardino, is my name in this guy’s phone, was he communicating with other people about me or my family members?’”
Pym’s order would require Apple to write new code, permitting password-cracking software an infinite number of guesses to access the iPhone 5c. Apple immediately and publicly resisted, saying the government was asking it to undermine its promises to protect user privacy.
Since the 16 February order, the FBI and Justice Department have gone back and forth with Apple almost daily in their arguments for why the request is necessary and limited in its application to the terrorism case at hand.
The involvement of San Bernardino survivors and relatives of victims provides emotionally resonant pressure on Apple, which has framed its dispute with the FBI as a matter of wide-ranging precedent for privacy, overshadowing the specifics of the San Bernardino case.
“We have no tolerance or sympathy for terrorists,” chief executive Tim Cook told Apple employees in a letter made public by the company on Monday.
“This case is about much more than a single phone or a single investigation, so when we received the government’s order we knew we had to speak out. At stake is the data security of hundreds of millions of law-abiding people, and setting a dangerous precedent that threatens everyone’s civil liberties.”
From the FBI’s perspective, Apple’s lack of compliance represents an exception to a duly authorized warrant, a situation which director James Comey has since 2014 warned would create a digital zone of impunity for terrorists, authors of child abuse images, and other criminals to communicate.
The FBI has argued that asking to guess the password for the phone’s lock screen represents a technologically savvy compromise that does not provide a “back door” into the encryption Apple has designed for its mobile operating system on the iPhone since 2014. Last week, in a filing the Justice Department conceded was not legally necessary, it accused Apple of placing its “ public brand marketing strategy ” over safety and security concerns.
Apple’s filings in the case, outlining its legal reasons for resisting the order, are due on 26 February, ahead of a scheduled 22 March hearing in court. Yet both sides are aggressively litigating the case in public. At least two congressional panels are planning hearings with Apple and FBI representatives.
The Pen-issued open letter underscored the intense and mounting public component to the case.
“The consequences of forcing Apple to create software that effectively creates a back door into its encryption systems are serious: such an outcome will put hundreds of millions of people on notice that their texts, emails, documents, photos, videos, poems, stories, and creations may no longer be secure, and that they had better keep that in mind as they draft, develop, and dream,” the letter states.
Signatories include Azar Nafisi, Larissa MacFarquhar, K Anthony Appiah, Jonathan Lethem, Colm Tóibín, Gay Talese, Russell Banks and Anne Tyler.
Larson said the victims he represented were unlikely to make public statements outside the forthcoming court filing, expected by 3 March.
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