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Apple says Constitution 'forbids' what FBI is asking

In its latest filing in the battle over unlocking an iPhone, Apple says the All Writs Act "cannot be stretched to fit this case."

James Martin/CNET

Apple shouldn't have to comply with a search order for an iPhone used by one the San Bernardino, California, terrorists because the Constitution forbids it, the company said Tuesday.

In a reply to a Department of Justice filing from Thursday, Apple said that the All Writs Acts -- the 227-year-old law invoked to compel Apple to assist the FBI -- can't be applied in this case. It also sought to show that prior cases cited by the Justice Department can't be used as precedent to make Apple redesign its mobile software. The iPhone maker went on to say that the founding fathers of the US "would be appalled" by how the FBI and Justice Department are trying to use the All Writs Act.

"The All Writs Act cannot be stretched to fit this case because to do so 'would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction,'" Apple's filing said, quoting a decision from the 9th US Circuit in 1979.

The Justice Department's most recent filing defended its use of the All Writs Act, saying in passing the act, "Congress gave courts a means of ensuring that their lawful warrants were not thwarted by third parties like Apple."

Now playing: Watch this: Apple vs. the FBI: An easy explanation

Apple argued Tuesday that the Justice Department is trying to give the Act more reach than it actually contains.

"The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is," Apple said in its latest filing. "This Court should reject that request, because the All Writs Act does not authorize such relief, and the Constitution forbids it."

While noting the tragedy of the terrorist attacks, the Cupertino, California-based tech giant argued that civil liberties should not be sacrificed in favor of the government's investigative expedience.

"This case arises in a difficult context after a terrible tragedy," Apple said. "But it is in just such highly-charged and emotional cases that the courts must zealously guard civil liberties and the rule of law and reject government overreaching. This Court should therefore deny the government's request and vacate the order."

Apple and the US government have been battling for weeks over the extent to which Apple should help pull data from an iPhone tied to December's San Bernardino massacre. Apple has been resisting a February 16 federal court order to unlock the iPhone 5C used by one of the San Bernardino terrorists.

The FBI wants Apple to create a special version of its mobile software to help access data on an iPhone used by Syed Farook, one of two terrorists who killed 14 people and wounded 20 others. Apple, which said it has already helped the FBI as much as it can, contends the court doesn't have the authority to force it to write a special version of iOS, and the company has turned this into a broader debate over personal privacy, one that has drawn the tech industry to its side.

Apple on Tuesday also submitted a statement from Craig Federighi, Apple's head of software, in which he says "Apple designed the iPhone with users' security in mind." He noted that Apple has never made any data more technologically accessible to any country's government. "It is my understanding," he said, "that Apple has never worked with any government agency from any country to create a 'backdoor' in any of our products or services."

The Justice Department declined to comment Tuesday, saying it will argue the case next week.

The filing is Apple's last before a hearing to discuss the standoff set for March 22 in federal court in Riverside, California.

The company's latest filing comes in response to a brief by the Justice Department from March 10 that argued why Apple should comply with the order. In its 43-page document, the Justice Department took a harsher tone than before, accusing Apple of lying and using "corrosive" rhetoric in its public comments and court filings. The Justice Department said complying with the FBI's request wouldn't be an "undue burden" for Apple. The government also said Apple "deliberately raised technological barriers that now stand between a lawful warrant and an iPhone containing evidence related to the terrorist mass murder of 14 Americans."

Apple's top attorney, general counsel Bruce Sewell, fired back later that day during a call with reporters. He dubbed the Justice Department's filing a "cheap shot" and said it "read like an indictment." "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 with false accusations and innuendo, and less intended to focus on the real merits of the case," Sewell said. "I can only conclude the DOJ is so desperate at this point it's thrown all decorum to the winds."

Erik Neuenschwander, manager of user privacy at Apple, reiterated in a declaration Tuesday that creating a new version of iOS, which he called "GovtOS," could expose all iPhone users to security risks. It would take only minutes for Apple -- or anyone else -- to install the software on other devices once GovtOS was created, he said.

"The protections that the government now asks Apple to compromise are the most security-critical software component of the iPhone," Neuenschwander said. "Any vulnerability or back door, whether introduced intentionally or unintentionally, can represent a risk to all users of Apple devices simultaneously,"

Update at 4:45 p.m. PT with the declaration from Apple's manager of user privacy and comment from the Justice Department.