Justice Department: Apple 'Deliberately' Put Up Barriers Against 'Modest' iPhone Court Order

justice dept
The Justice Department building in Washington. Gary Cameron/Reuters

In a colorfully worded filing on Thursday, the Department of Justice called out Apple's refusal to cooperate with the FBI on opening a San Bernardino shooter's iPhone, saying it is a "deliberate marketing decision" and "corrosive of the very institutions that are best able to safeguard our liberty and our rights."

The Justice Department argued that Apple has deliberately put up technological barriers to prevent unlocking a terrorist's phone for investigation in the name of national security.

"Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden," the filing says. "Under those specific circumstances, Apple can be compelled to give aid. That is not lawless tyranny. Rather, it is ordered liberty vindicating the rule of law."

The filing shot back at one of Apple's central claims against the FBI: that the bureau had shooter Syed Rizwan Farook's Apple ID password changed after the attacks, thus preventing the feds from seeing the phone's contents. The Justice Department found that Farook himself turned off the auto-backup feature and changed the Apple ID password on October 22—a month and a half before he and his wife killed 14 people. At the March 1 hearing in Congress, FBI Director James Comey said that "a mistake was made" in the FBI's handling of the password.

"A forced backup of Farook's iPhone was never going to be successful, and the decision to obtain whatever iCloud evidence was immediately available via the password change was the reasoned decision of experienced FBI agents investigating a deadly terrorist conspiracy," the filing says.

Gov't Response to Apple by CNBCDigital

The Justice Department also argued against Apple's main legal argument against the FBI's compelling its engineers to write code to crack the iPhone through the 1789 All Writs Act, which allows courts to issue commands for third-party entities to cooperate with the government. Apple said the law would cause an "undue burden" on the company. The department cites a 1980 U.S. Court of Appeals decision, in the so-called Mountain Bell case, that upholds an All Writs Act order that required an instance of computer programming.

The filing says in its introductory paragraph that Apple won't be under duress in following the court order, as it will only need "to set aside as few as six of its 100,000 employees for perhaps as little as two weeks."

The filing also called two other claims from Apple—that creating the custom iOS software to open Farook's phone will open up a Pandora's box on encryption and that foreign governments will seek to take advantage of Apple afterward—"misleading." For the former, the Justice Department says Apple has shown its capability in guarding other codes, so there is no reason to think otherwise for the custom iOS software.

As for the threat from foreign governments, the Justice Department said Apple has already cooperated with China in providing information to thousands of iPhones. "This Court's Order changes neither the carrots nor the sticks that foreign governments can use on Apple," it said.