Apple: government 'intended to smear' us in digital privacy fight with FBI

Apple said federal prosecutors are “offensive”, “desperate” and “intended to smear” them in a remarkable escalation of the digital privacy fight between America’s most valuable company and the FBI.

The remarks from Apple’s top lawyer, general counsel Bruce Sewell, were made in a conference call with reporters just hours after the Justice Department submitted a legal brief that accused the technology company of trying to usurp power from the government.

In sometimes caustic language, the government had claimed Apple had declared itself “the primary guardian of Americans’ privacy”.

Sewell responded: “In 30 years of practice, I don’t think I’ve ever seen a legal brief that was more intended to smear the other side. I can only conclude that the Department of Justice is so desperate at this point that they’ve thrown decorum to the winds.”

Investigators want a federal judge in California to order Apple to weaken the security defenses of an iPhone used by San Bernardino gunman Syed Farook. The government would then be able to break into the phone.

The breakdown in relations is more than just headline-grabbing dramatics. It means that Silicon Valley and Washington are now less likely than ever to come to a middle ground in their two-year debate over encryption and law enforcement in the smartphone age. The only foreseeable solution would come from a broad court ruling or new legislation, which could miss many of the subtleties of the debate.

The day’s developments were a shift from recent efforts by Apple executives and FBI director James Comey to mend fences and restart good relations. During his testimony in front of Congress on 1 March, Comey said about the tech company: “I don’t question their motives.”

That seemed like a distant memory on Thursday.

In its 35-page filing, the government cited news reports and other sources in suggesting that Apple was being hypocritical in refusing to help the US any more in the San Bernardino case while cooperating with the Chinese government. Apple, for instance, stores data for Chinese users in Chinese data centers, and its Chinese devices can work with Beijing-exclusive Wi-Fi and mobile broadband standards. Some US officials have long assumed those standards facilitate Chinese state surveillance.

“The evidence in the public record raises questions whether it is even resisting foreign governments now,” the government wrote.

The insinuation clearly enraged Apple executives. Speaking to reporters on Thursday, Sewell said it was the equivalent of Apple asking the judge in the case if she can really trust the FBI by citing a thinly sourced rumor, such as, didn’t J Edgar Hoover order the assassination of John Kennedy. “See conspiracytheory.com as our supporting evidence,” Sewell said jokingly.

Apple attorneys acknowledge the company does store data in China and is compatible with local wireless standards. However, the attorneys said these are for trade and usability reasons and don’t relate to surveillance.

“This should be deeply offensive to anyone who reads it,” Sewell said. “The tone of the brief reads like an indictment.”