- Tech competitors argue privacy, security threatened in case
- San Bernardino shooting victim among those supporting Apple
Tech giants including Microsoft Corp. and Google set aside often fierce rivalries to back Apple Inc. in its fight against a judge’s order to help unlock the iPhone of a dead terrorist.
Fifteen companies, including Facebook Inc. and Amazon.com Inc., seek in their so-called friend-of-the-court brief to undo the order for Apple to create software to help the FBI unlock an iPhone used by Syed Rizwan Farook, who died in a shootout with law enforcement after killing 14 people at a holiday party in San Bernardino, California, in December.
While saying they have no interest in shielding those who break the law, the tech firms said they “reject the government’s assertion that the law allows it to commandeer a company’s own engineers to undermine their products’ data security features.” The judge’s order is “unsupported by the case law, unduly burdensome to technology companies like applicants, and particularly harmful for American consumers,” they said in their request, one of a deluge of filings by other Apple supporters as well as law enforcement and victims of the shooting.
Twitter Inc. and EBay Inc. were among 17 companies that separately asked to back Apple in the fight. Intel Corp. and AT&T Mobility LLC also each asked to argue in court on behalf of Apple that the order will chill innovation and ultimately decrease security. Human-rights and digital-rights groups, a United Nations official and even a man whose wife nearly died in the terror attack, also weighed in on Apple’s side as Thursday’s deadline approached for joining the historic privacy battle.
Law enforcement groups seeking to join the case said their ability to extract data from evidence is critical to solving crimes and protecting the public.
“The position Apple has taken is a dangerous one,” according to the filing by the Federal Law Enforcement Association, the Association of Prosecuting Attorneys Inc. and the National Sheriffs’ Association. “If Apple were to prevail, the public at large may itself think twice about cooperating with law enforcement when called upon to do so.”
Those asking to support the government in the case also include five people who had family members killed in the attack and the husband of another who survived the assault on the holiday party.
“Ultimately, this is a situation where no stone can be left unturned,” the family members said.
If U.S. Magistrate Judge Sheri Pym considers the friend-of-the-court briefs, they could help her decide at a March 22 hearing whether to change her Feb. 16 order that Apple help the FBI. Some of the filings were available directly from the court docket, while others were provided by Apple.
The legal linchpin of the case is whether a 1789 law, the All Writs Act, gives the government the authority it needs to conscript Apple engineers in its effort to bypass the iPhone’s encryption. Mirroring Apple’s arguments, its supporters said providing the government with information as required in a warrant is one thing; forcing companies to modify their products is another.
“The government endeavors to reinterpret the All Writs Act as an open-ended source of new powers,” according to the Microsoft-Google filing. “Congress has never seen fit to give law enforcement the power it now seeks from this court.”
The companies, which include Cisco Systems Inc., Snapchat Inc. and Yahoo! Inc., said many of them have full-time teams of employees dedicated to law enforcement requests for customer data. Together in the first six months of last year, they said they responded to tens of thousands of U.S. government requests for data in criminal cases.
Apple arch-rival Samsung Electronics Co. has also weighed in, saying in a statement that any requirement to build back doors into its devices would undermine trust. The world’s largest smartphone vendor said earlier Thursday it hadn’t decided whether it would file a friend-of-the-court brief.
The Consumer Technology Association, whose members include Samsung, along with other industry groups are also seeking to present their arguments to the judge. Other Apple supporters include the American Civil Liberties Union, which said that the government doesn’t have the authority to “enlist private third parties as its investigative agents.”
The Electronic Frontier Foundation backed a free-speech argument that Apple itself has made, saying the company’s programmers can’t be forced against their will to write a code for the FBI to unlock the phone. Such an order would be unconstitutional, the group said in its filing.
The U.S. says it wants to defend people from terrorist attacks by unlocking the phone to search its contents. FBI Director James Comey said at a Congressional hearing this week that the bureau is simply asking Apple to remove some security features. Among other possibilities, the phone’s GPS data may help investigators determine what Farook and his wife, who was the second attacker, did immediately after the attack, Comey has said.
“Essentially we’re asking Apple to take the vicious guard dog away, let us try and pick the lock,” Comey told the House Judiciary Committee. He added that everyone should understand the risks of having “warrant-proof spaces” in which terrorists and criminals can communicate with impunity.
Salihin Kondoker, whose wife was wounded in the San Bernardino attack, wrote he was frustrated at first when he learned of Apple’s opposition to the court order. “But as I read more about their case, I have come to understand their fight is for something much bigger than one phone.”
He said he doesn’t believe there is any useful information on the device anyway, as it was Farook’s work phone, owned by San Bernardino County. “They destroyed their personal phones after the attack. And I believe they did that for a reason,” he said of Farook and his wife.
“Neither I, nor my wife, want to raise our children in a world where privacy is the trade-off for security,” said Kondoker, an information technology consultant in San Bernardino.
San Bernardino’s district attorney said in a filing that the iPhone may yield clues about initial reports of third perpetrator in the massacre. The prosecutor also said the phone may contain evidence that it was used as a “weapon to introduce a lying dormant cyber pathogen that endangers San Bernardino County’s infrastructure,” a possibility that “poses a continuing threat to the citizens of San Bernardino County.”
Privacy International and Human Rights Watch said in a filing that undermining mobile phone security tools, especially encryption, could jeopardize the safety of journalists and activists around the world.
“Governments in many other countries, both democratic and authoritarian, may seek to compel Apple and other technology companies to assist their law enforcement and intelligence agencies by weakening those protections,” the groups said. “The outcome of this case could make it easier for them to do so.”
Separately, David Kaye, an expert on human rights with the United Nations, cited a 2015 report for the UN’s Human Rights Council to show that encryption and online anonymity advance freedom of opinion and expression. The report drew on input from countries including Cuba, Kazakhstan, Lebanon, Turkey, Germany, Ireland, Sweden and the U.S., finding that encryption helps protect people against online censorship, targeted surveillance, data collection and other techniques used by governments, corporations and criminals.
A group of computer security experts including Dino Dai Zobi, an author and speaker on Apple iOS security, Dan Boneh, a Stanford University professor, and Jonathan Zdziarski, an independent forensics researcher, said the case “endangers public safety” because it could enable law enforcement to commandeer consumer devices for surveillance. Building code to unlock just one phone wouldn’t work because of the risk the software would escape Apple’s control through theft, embezzlement or a foreign government’s order, the group said.
The App Association, an advocacy group for more than 5,000 application developers and technology firms, said the government’s position could badly damage the app economy. It warns that the case invokes the government’s ability to dictate to any company that it has to write code to facilitate a law enforcement investigation, potentially putting an “untenable burden” on the app industry. The $120 billion industry is responsible for around 1.7 million jobs in the U.S. today, up from zero in 2007, the group said.
Courts routinely consider friend-of-the-court filings in cases that involve broader public interests or question how existing law should be applied to new technologies. Last year, the U.S. Supreme Court weighed a brief by Google, among others, before issuing a split decision that Los Angeles police can’t check hotel registration records without a search warrant. A year earlier, the high court considered a brief by the Electronic Privacy Information Center before ruling that police can’t search cell phone data without a search warrant.
Apple argues, and has found support from a magistrate judge in Brooklyn, New York, that the Justice Department lacks authority under the All Writs Act to force the company to hack into its phones because the U.S. Congress has considered giving law enforcement that power and has so far declined to grant it.
The Brooklyn judge last year declined a request by the ACLU and the Electronic Frontier Foundation to file a brief, saying it was unnecessary because, even if they may have had “a fresh perspective on a broader policy debate,” the question before him was a narrow legal issue.
The case is In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, 16-00010, U.S. District Court, Central District of California (Riverside).