The Justice Department filed a motion Friday to compel Apple to comply with an earlier court order directing the company to assist the FBI in unlocking an iPhone belonging to one of the attackers in the San Bernardino mass shooting.

The 35-page motion to compel presents a snappish point-by-point rebuttal of Apple CEO Tim Cook’s public refusal to cooperate with the government on the case. Here’s a look at the government’s argument as it unfolds in the document.

    • Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which has been found by this Court to be warranted for an important investigation.


    • The order allows Apple to retain custody of its software at all times, and it gives Apple flexibility in the manner in which it provides assistance. In fact, the software never has to come into the government’s custody.


    • Apple appears to object based on a combination of: a perceived negative impact on its reputation and marketing strategy were it to provide the ordered assistance to the government, numerous mischaracterization of the requirements of the Order, and an incorrect understanding of the All Writs Act.


    • Here, the type of assistance does not even require Apple to assist in producing the unencrypted contents; the assistance is rather to facilitate the FBI’s attempts to test passcodes.


    • Apple may maintain custody of the software, destroy it after its purpose under the order has been served, refuse to disseminate it outside of Apple, and make clear to the world that it does not apply to other devices or users without lawful court orders.


    • Apple is not above the law…and it is perfectly capable of advising consumers that compliance with a discrete and limited court order founded on probable cause is an obligation of a responsible member of the community.


    • It does not mean the end of privacy.


    • Apple’s speculative policy concerns regarding possible consequences from compliance with the order in this matter merit little weight, particularly when complying with a court order based on a warrant that serves the ends of justice and protects public safety in furthering the investigative aims of a terrorism investigation.


    • The order permits Apple to take possession of the subject device to load the programs in its own secure location, similar to what Apple has done for years for earlier operating systems, and permit the government to make its passcode attempts via remote access.


    • This court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company–complying with a lawful court order–could be obviated because that company prefers to market itself as providing privacy protection that make it infeasible to comply with court-issued warrants.



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MeriTalk Staff