Tech, privacy leaders pledge support for Apple in iPhone fight
How others see it
Dozens of tech companies and privacy advocates filed amicus briefs supporting Apple's refusal to comply with a court order calling on the company to help unlock an iPhone used by one of the San Bernardino, Calif., shooters.
Ted S. Warren / AP
Apple is getting a little help from its friends in Silicon Valley and the privacy community to make its case against the FBI.
Dozens of supporters, including tech companies and privacy advocates, have filed amicus briefings in a US district court supporting the company's decision to resist a court order to help unlock an iPhone belonging to one of the San Bernardino, Calif., shooters.
Twitter and 16 other tech companies, including Reddit, AirBnB, and eBay filed a joint brief Thursday to Sheri Pym, the federal magistrate judge in California overseeing the case. Google, Facebook, Microsoft, Yahoo, Amazon and 10 other companies also filed a brief. The American Civil Liberties Union and digital rights groups such as the Electronic Frontier Foundation, Access Now, and the Wickr Foundation also filed documents supporting Apple's position.
Many of the briefs say that a ruling against Apple could set a precedent that would open the door to the FBI asking for technical assistance to unlock more iPhones seized in criminal cases. Others argued that a US government victory in the case could impact human rights, free speech, and the public's willingness to download software updates.
What's more, Salihin Kondoker, a San Bernardino resident whose wife was injured in the shooting, and David Kaye, the free speech rapporteur for the United Nations, sent letters urging Judge Pym not to force Apple to create software that would help the FBI access data on Syed Rizwan Farook's iPhone. Mr. Farook, along with his wife Tashfeen Malik, carried out the December terrorist attack in California that left 14 people dead. Police shot and killed the couple after the attacks.
Tech companies began announcing earlier this week they would file amicus briefs, following Apple's victory in a similar legal case Monday. In that case, federal magistrate Judge James Orenstein in New York denied a US government request to access data from a locked iPhone captured in connection with a 2014 drug case.
As part of its court challenge in the San Bernardino case, Apple sent a notice to the California court Wednesday about Judge Orenstein's decision that the 1789 All Writs Act statute is not sufficiently expansive to extract iPhone data. The All Writs Act allows federal judges to write court orders that compel people to perform legally permitted actions.
Apple filed a motion last week to dismiss that order on the grounds that the request was overly burdensome on the company and would irreparably harm the security of all of its customers.
The briefs allow Silicon Valley and privacy advocates to offer information pertinent to the the case and introduce concerns about the potentially broad legal effects of the court's decision. The court can decide whether or not to allow that information to be used in hearings, which are scheduled to begin March 22.
Excerpts from the documents and letters follow below. A full list of supporters that sent in amicus briefs is available here.
"The Department of Justice and the FBI demand that Apple dedicate its employees and hundreds of hours of employee time to develop software that provides a way to break into iPhones. That software does not currently exist. In fact, Apple specifically chose not to create it in the course of its business. The government now claims it can conscript Apple to create software Apple does not want to create and then force Apple to assist the government in using that software. The record demonstrates that government access requests will not stop with this single device."
"Deliberately compromised digital security would undermine human rights around the globe. Pursuant to international law, the United States has a duty to foster basic human rights such as freedom of expression and privacy. The assistance sought by the government not only diminishes the commitment of the United States to uphold those fundamental rights in the digital age, but also keeps Apple from fulfilling its own responsibilities to respect the human rights of users."
"If granted, the request would establish a precedent that would undermine the security of hundreds of millions of iPhones and other devices, relied upon by countless individuals to protect sensitive and private information. If the government’s interpretations of the law holds, not only could it force Apple to create the cryptographically signed software it seeks here, but it could force Apple to deliver similar signed software using Apple’s automatic-update infrastructure."
"The extent, if any, to which the thousands of participants in the App Economy should be enlisted to aid the Government in criminal investigations in such a manner was not resolved by Congress in 1789 when it passed the All Writs Act, and the courts should allow Congress to address the issue now rather than fashioning what would be in effect a common law solution to a significant matter of public policy."
"The government can and should use every means available to it to investigate the tragic events in San Bernardino, and that includes compelling Apple's cooperation to the full extent permitted by law. In this case, however, the government seeks to compel cooperation that was not intended by Congress, that may risk substantial harm to the security of millions of iPhones, and that, put simply, is more than what can be supported under the All Writs Act."
"The government professes that this request is an isolated request about a single phone in a single investigation. But, the government does not deny that it is already seeking similar orders from other courts around the country. If it prevails on its sweeping interpretation of the All Writs Act here, it is almost certain to seek to leverage that outcome in an effort to conscript a wide range of businesses and industries to achieve its ends through means foreclosed by Congress."
"This case is about giving the government the power to conscript technology providers to create new versions of their products intended solely to defeat the security features designed to safeguard their users. It is about minimizing technological vulnerabilities that could be exploited to the detriment of everyone who uses connected devices. A decision in favor of the government would set the stage for similar orders against a wide range of technology companies and all manner of products."
"Vulnerabilities are common in software code, despite vendors’ best efforts. To address this problem, vendors employ extensive pre-release testing; after-the-fact audits, including by independent security researchers; and regular updates. Yet none of these practices, alone or in concert, can ensure that software will not be vulnerable and subject to misuse. Yet, given the circumstances of this case, this code is unlikely to go through this lifecycle, increasing the risk that it will introduce vulnerabilities into the iPhone ecosystem."
"By compelling Apple to write and then digitally sign new code, the Order forces Apple to first write a message to the government’s specifications, and then adopt, verify and endorse that message as its own, despite its strong disagreement with that message. The Court’s Order is thus akin to the government dictating a letter endorsing its preferred position and forcing Apple to transcribe it and sign its unique and forgery-proof name at the bottom."
"Under the ad hoc approach the government advocates, the assistance it can request is limited only by its imagination and the case-by-case reasonableness calls made by magistrate judges across the country."
"But before the government is given the broad authority to force a company to develop technology for the purpose of circumventing security features, the issues that such authority would raise should be discussed and debate through the democratic process, with consultation involving industry and other affected stakeholders. Because government currently does not have that authority, Apple's motion to vacate should be granted."
"The mere existence of the power the government seeks may erode the security infrastructure of the Internet. If Apple can be compelled to undermine its security features, what confidence can users of Apple and other technology products and services actually place in those features? For instance, would it be appropriate to trust a software security update from a company that could be compelled to include malicious software – often called malware – in that update? Yet these security updates are crucial to protecting all of our data and devices, since they are normally deployed to fix vulnerabilities that might otherwise be exploited by hackers, including criminals and foreign agents."
"When I first learned Apple was opposing the order I was frustrated that it would be yet another roadblock. But as I read more about their case, I have come to understand their fight is for something much bigger than one phone. They are worried that this software the government wants them to use will be used against millions of other innocent people. I share their fear."
"In light of multiple efforts to obtain information about journalists’ newsgathering activities in the context of government investigations, including confidential source identities and confidential materials, the Order’s expansive interpretation of the All Writs Act constitutes a danger to journalists’ ability to rely on technologies that have become indispensable to modern newsgathering."
"Apparently recognizing the deeply private nature of the data contained on these devices, and the security risks inherent in circumventing encryption software, the government asserts that there is no danger because the software that Apple would be compelled to create would be used only for this one phone—and could be retained in Apple’s possession and then destroyed. That is an unrealistic picture of the consequences of upholding the government’s demand."
"This extraordinary and unprecedented effort to compel a private company to become the government’s investigative arm not only has no legal basis under the All Writs Act or any other law, but threatens the core principles of privacy, security, and transparency that underlie the fabric of the Internet."
"Given that the Government has multiple, alternative technical and operational measures to conduct this investigation, it is unclear that the Government’s motion to compel Apple to create software to enable access to this iPhone is necessary for this particular investigation."