U.S. Says Marketing Is Reason Apple Won't Unlock Phone--Update

Dow Jones Newswires

The Justice Department said Friday Apple Inc.'s refusal to help open a phone used by one of the shooters in the San Bernardino, Calif., terrorist attack was based on the company's marketing concerns and on mischaracterizations of the facts, not on solid legal grounds.

The assertions, contained in a court motion, further escalate what has become a high-profile, increasingly bitter clash between the U.S. government and one of the world's most-recognized companies.

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Federal prosecutors filed the new motion, asking U.S. Magistrate Judge Sheri Pym to force Apple to obey her previous order, while admitting that it isn't legally necessary. The chief purpose of the new motion is apparently to push back against a forceful public letter from Apple CEO Tim Cook that criticized the government's effort to make the company help investigators open a phone used by San Bernardino shooter Syed Rizwan Farook.

The Justice Department's move underscores how the intensifying battle between Apple and the federal government is playing out in the public arena as much as in the courthouse. At issue is a question that is increasingly critical at a time of proliferating terrorism and ubiquitous technology: how much tech companies must help investigators seeking to bypass the encryption on suspects' personal phones or devices.

The Justice Department motion seeks to knock down all of Apple's core arguments--that helping open this phone would lead to less secure iPhones for all customers, that current law doesn't force Apple to comply, and that doing so would be an unfair burden on the company.

"Apple appears to object based on a combination of a perceived negative impact on its reputation and marketing strategy...numerous mischaracterizations of the requirements of the order, and an incorrect understanding of [the law]," prosecutors wrote.

In a direct jab at Mr. Cook's letter, they added, "Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this court's order of February 16, 2016, Apple has responded by publicly repudiating that order."

The government argued that Judge Pym, in her order issued Tuesday, required Apple to disable safety features on the phone so agents could guess the phone's password without erasing its data. Under the current setup, the phone's contents are erased after 10 unsuccessful attempts to enter a password.

Mr. Cook says that doing what the government asks would create a "backdoor" security vulnerability threatening the privacy of every iPhone user.

"The government is asking Apple to hack our own users," Mr. Cook wrote in an impassioned public letter to customers Tuesday. "We can find no precedent for an American company being forced to expose its customers to a greater risk of attack."

The prosecutors' response suggests they believe Apple is thinking more about marketing strategy than lofty principles. Signaling they believe the company is looking for a fight, they said in a biting footnote, "The government files this noticed motion to provide Apple with the due process and adversarial testing it seeks."

A spokesman for the company didn't immediately respond to a request for comment.

Apple has until next Friday to explain to Judge Pym why it shouldn't have to obey her order. A court hearing is scheduled for March 22 for the judge to hear directly from the two sides.

The government and the company both see the dispute over the San Bernardino phone as a possibly decisive confrontation in the battle over encryption.

Those high stakes were underlined further Friday when Apple hired a legal heavyweight, Ted Olson, to represent it in the current fight. Mr. Olson's hiring is another indication the sides are preparing for a potentially precedent-setting case that could reach the U.S. Supreme Court.

Mr. Olson, a former solicitor general, has argued many times before the high court, and he represented the winning side in the Bush v. Gore case that ended the 2000 presidential election.

Sara Randazzo contributed to this article.

Write to Devlin Barrett at devlin.barrett@wsj.com

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