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The DOJ Calls Apple’s Pro-Privacy Stance a ‘Marketing Strategy’

February 19, 2016, 8:39 PM UTC
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A man checks the Apple Music streaming site using his Apple Inc. iPhone 6s as he stands framed against a wall bearing the Apple logo in this arranged photograph in London, U.K., on Wednesday, Dec. 23, 2015. Beatles songs will now be available around the world on nine streaming services including Apple, Spotify, Deezer and Google Play, the bands record company, Vivendi SAs Universal Music Group, said Wednesday in a statement. Photographer: Chris Ratcliffe/Bloomberg via Getty Images
Photograph by Chris Ratcliffe — Bloomberg via Getty Images

Earlier this week, Apple took a public stance against a court order that it help the FBI unlock a mass shooter’s iPhone. But the Department of Justice is having none of it.

On Friday, the DOJ filed a new motion in court, calling Apple’s (AAPL) resistance a “concern for its business model and public brand marketing strategy” rather than a genuine inability to break its own phone-locking technology and fear of setting a legal precedent.

Following the original court order on Tuesday, Apple’s response was that the only way it could unlock the iPhone belonging to one of the San Bernardino shooters would be to write new firmware to hack the phone’s password. It also expressed concern over setting a precedent for future government requests that it effectively hack its own products, and that building this firmware would create a “back door” through which the government—and even bad actors—could violate its customers’ privacy in the future.

Not so, says the DOJ:

The Order does not, as Apple’s publication statement alleges, require Apple to create or provide a “back door” to every iPhone; it does not provide “hackers and criminals” access to iPhones; it does not require Apple to “hack [its] own users’ or to “decrypt” its own phones; it does not give the government “the power to reach into anyone’s device” without a warrant or court authorization; and it does not compromise the security of personal information.

In fact, it argues that the court’s order actually “allows Apple to retain customer of its software at all times, and it gives Apple flexibility in the manner in which it provides assistance,” and that “the software never has to come into the government’s customer.”

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Later on Friday, two anonymous senior Apple executives told several media outlets during a conference call that, while attempting to help the FBI unlock the phone in January, the tech giant learned the phone’s password had been changed less than 24 hours after authorities took possession of it. Had that not happened, Apple could have likely easily accessed its content, the executives said.

The executives added that Apple had signed a confidentiality agreement not to discuss its efforts to help authorities on the matter, but the government violated the terms in its court filing on Friday. In the document, the government disclosed some of Apple’s prior efforts to access the phone, therefore opening the door for further public discussion of their dealings.

Apple CEO Tim Cook has been quite vocal about his company’s staunch pro-privacy stance in recent times, decrying the government’s belief that technology companies should grant it access to consumer data. The company’s opposition against Tuesday’s court order has garnered it support from peers, including Google (GOOGL) CEO Sundar Pichai, Facebook (FB), Twitter (TWTR) CEO Jack Dorsey, and WhatsApp CEO Jan Koum.

The story has been updated with information from media reports citing two anonymous senior Apple executives. An earlier version misstated that only one executive was on the conference call. The story has since been corrected.