A U.S. magistrate issued an order that Apple must build a tool for the FBI to access one of the San Bernardino shooter’s iPhones, but the Cupertino company doesn’t want to create a backdoor into its secure operating system — fearing that it could get into the wrong hands.
A wide range of people, companies, and organizations have submitted amicus briefs and sent letters to voice their concerns and opinions on the encryption debate between Apple and the FBI. We have selected quotes from each brief and letter that best resonate with the tone of the people behind it. Read our full coverage on the issue here.
As a note, some organizations and individuals grouped together to attach their names to a single amicus brief, rather than filing separate notes. You can view the full list of briefs and letters in support of Apple here. These amicus briefs support Apple’s motion to vacate, which is a request to withdraw, a previous order of judgment. In this case, Apple is requesting that the order build a tool to help the FBI unlock the shooter’s phone be retracted.
Support for Apple comes from a wide array of sources, ranging from civil and human rights groups to tech companies and law experts.
Airbnb, Atlassian, Automattic, CloudFlare, eBay, GitHub, Kickstarter, LinkedIn, Mapbox, Meetup, Medium, Reddit, Square, Squarespace, Twilio, Twitter, Wickr
These 17 organizations represent a user base of more than a billion people. The collective brief goes into lengths about how the aforementioned companies are willing to support law enforcement as long as requests are done through legal, established methods.
“Granting the government such extraordinary authority, without any set rules or legal protections, will not only erode user privacy and security and defeat users’ interest in transparency, it will undermine an existing legislative framework balancing competing interests and policy considerations,” the brief says.
Amazon, Box, Cisco Systems, Dropbox, Evernote, Facebook, Google, Microsoft, Mozilla, Nest, Pinterest, Slack, Snapchat, Whatsapp, Yahoo
This one’s the big one — it’s what everyone in the tech industry was waiting for first, but it was one of the last to be added to the list of brief’s on Apple’s Web page. It includes the top dogs in Silicon Valley, including Google, Facebook, Amazon, and Microsoft.
The brief more or less hits all the points made by Apple and other critics of the judge’s order. The companies worry that if the ruling goes in favor of the FBI, then it would undermine sensitive data belonging to the American people. Also, since computer code is free speech, the government is asking Apple engineers to “engage in protected speech — against their will.”
“Writing computer code can be a creative, complex, and expressive task, and it is a form of protected speech under the First Amendment,” the brief reads. “…A panel of the Ninth Circuit has likewise held that ‘encryption software, in its source code form and as employed by those in the field of cryptography, must be viewed as expressive for First Amendment purposes.'”
It also mentions that if Apple is compelled to create new code and re-engineer its product, the same could be done to any of the aforementioned companies.
“With enough time and resources, amici’s engineers could possibly come up with any number of new versions of their companies’ products that circumvent or undermine their pre-existing data-security features,” the brief states. “But those versions would not be the same product anymore. Box would not be Box; Gmail would not be Gmail; WhatsApp would not be WhatsApp; and so on.”
Intel submitted its own amicus brief alone, and its key point is that Congress should take action, not the court, and the whole debate should follow the democratic process.
“The issues that such authority would raise should be discussed and debated through the democratic process, with consultation involving industry and other affected stakeholders. Because the government currently does not have that authority, Apple’s motion to vacate should be granted.”
This one is a bit surprising — and it also brings to light the lack of response from other carriers like Verizon and T-Mobile. AT&T’s submission is certainly going to draw raised eyebrows, though. After all, it was AT&T that permitted the National Security Agency to access billions of emails and call records through a “mutual partnership.”
But AT&T’s amicus brief largely focuses on noting that it is Congress’ job to determine the outcome of how the government can request access from third-party companies, not the court.
“These issues should be resolved by a public vote after a public debate following ‘the kind of investigation, examination, and study that legislative bodies can provide and courts cannot,'” the brief states, quoting Diamond v. Chakrabarty.
AVG Technologies, Data Foundry, Golden Frog, the Computer & Communications Industry Association (CCIA), the Internet Association, and the Internet Infrastructure Coalition
This collective consists of security services companies, an association representing American’s Internet companies, and more. They all back encryption and find privacy to be of utmost importance, which is why they filed a brief in support of Apple. The brief focuses on how this order could set a precedent that would impact smaller companies in the future.
“Smaller companies without the resources of Apple are more likely to quickly cave to the government’s demands in those cases, choosing the burden of creating new technology that undermines their products’ security over the threat of a contempt order,” the brief states.
BSA The Software Alliance, the Consumer Technology Association, the Information Technology Industry Council, and TechNet
This batch of supporters features the Business Software Alliance, which consists of leading software and hardware tech companies; the Consumer Technology Association, which produces the annual CES; the Information Technology Industry Council, an advocacy organization that “navigates” the relationships between governments and companies; and TechNet, which is comprised of CEOs and executives from major tech companies in the U.S.
One of the more interesting points in the brief filed by these organizations is that Congress “explicitly” hasn’t forced tech companies to follow government-imposed design specifications. Granting the order would circumvent Congress’ “intent in passing CALEA.”
“CALEA expressly prohibits the government from requiring any ‘provider of … electronic communication service’ to adopt a ‘specific design of equipment, facilities, services, features, or systems configuration,'” according to the brief.
ACT supports software companies in the mobile app community, and its brief discusses how forcing Apple to create specialized software can be burdensome for smaller companies that could be “conscripted” to create software to aid a government investigation.
“The risks associated with such revisions are especially severe where, as here, the modifications need to occur at the operating system level of the code, because the operating system affects all applications that run on and data stored on the device and therefore can create cascading problems throughout,” the document states. “Indeed, the Government’s position borders on the absurd in the context of software development.”
Human rights groups and privacy advocates
Access Now is an organization that globally defends the digital rights of users, and the Wickr Foundation is a nonprofit that focuses on building the “Private Web,” while advocating for private communication and uncensored information.
As such, the two organizations took a global perspective, offering insight into how the case relates to human rights law.
“Because this case raises profound questions about human rights to privacy and free expression in the digital era, it is particularly appropriate for the Court to consider guidance from international human rights law,” according to the brief.
Their brief also mentions that if Apple is forced to oblige to the FBI’s demands, there is “no reason” as to why other tech companies wouldn’t be asked to do the same in other cases.
“And other companies-particularly smaller and newer ones-may decide that the benefits of building robust security into their products do not outweigh the costs associated with later being required by the courts to enfeeble those efforts, which will incentivize them to create less secure products in the first place,” the organizations stated.
Another point that has been raised by almost all the briefings, and can be seen here the Center for Democracy & Technology’s amicus brief, is the fact that the motion by the judge was done ex parte. Ex parte means a proceeding is conducted for “the benefit of only one party,” and it’s usually done for urgent matters. In this case, the FBI did not show a reason why the case should be treated as such.
“It would set a precedent under which any company could be forced to spy on unknowing customers on behalf of law enforcement,” according to the brief. “All of this could be done behind closed doors, ex parte, with little or no opportunity for the company or public to be heard.”
The Electronic Frontier Foundation represents the interests of users who need “security, privacy, and protection from hackers, malware, and overbroad government surveillance.” The other 46 individuals range from the staff software engineer at Google, to the author of the Python programming language, Guido van Rossum.
This brief neatly summarizes the importance of Apple’s digital signature to its product, its consumers, and how the order would undermine the company’s own security features. It also breaks down, if you needed a recap, the three security features the new code created by Apple would defeat:
“Erase its keys after 10 incorrect passcode guesses (if enabled); impose increasingly long delays after consecutive incorrect passcode guesses to slow down guessing (also known as ‘rate limiting’); and requires individual passcodes be typed in by hand,” according to the brief.
EPIC was created in 1994 to advocate for the use of strong encryption and redirect the public’s attention to privacy and civil liberties issues. The other organizations “seek to protect consumers from data breach, financial fraud, and identity theft,” and they include: The Center for Digital Democracy, Constitutional Alliance, Consumer Action, Consumer Watchdog, the Cyber Privacy Project, Patient Privacy Rights, Privacy Rights Clearinghouse, and Privacy Times.
If there’s one thing to learn from this encryption debate, it’s how many organizations exist that advocate for privacy.
This brief delves into the serious concern of smartphone theft, and how forcing Apple to create a backdoor into its devices could harm the security of millions of Americans.
“Nearly half of all robberies in New York City and more than one third in other major cities involve cell phones,” according to the brief. “Smartphone theft is also an important source of funding for criminal syndicates and terrorist groups.”
American Civil Liberties Union, ACLU of Northern California, ACLU of Southern California, and ACLU of San Diego and Imperial Counties
The ACLU again hits all the points mentioned by other Apple supporters. The organizations also refers to a pre-existing law from 1994 called the Communications Assistance for Law Enforcement Act (CALEA), which shows that Congress has prevented law enforcement from forcing companies like Apple to build back doors.
“When Congress enacted CALEA, it expressly exempted ‘information services’ of the kind that Apple provides,” according to the brief. “In other words, CALEA exempts companies like Apple from the requirement that they build interception features into their communications services and products.”
The ACLU and other parties do mention that the FBI has been campaigning for Congress to expand CALEA’s reach to “cover companies like Apple,” but states that the FBI has met “stiff resistance” from Congress and other national security officials.
The Media Institute is a nonprofit research foundation that has an emphasis on freedom of speech, among other focuses. Its interesting perspective is a little different in that it says it places the independence of the press at risk in this case.
“The Apple case now creates the haunting scenario of the government seeking to use the All Writs Act to force a news organization to participate directly in an investigation by compelling protected expression without any First Amendment scrutiny,” the Media Institute writes. “Could the government, armed with a valid warrant, require the Associated Press to write a fictitious article and deploy malicious code on part of its site in order to infect the Seattle suspect’s machine and unmask him?
These two well-known advocacy groups have defended the right to privacy for quite a while, and it would be odd if we hadn’t heard from them. Their brief largely focuses on the global ramifications if the order succeeds.
“The security of the Internet operates like a fragile ecosystem, where a compromised device or service can negatively affect many other users,” the organizations write. “That ecosystem is unlikely to survive should the government seek to regularly compel technology companies to undermine the security of their products or services.”
Beats, Rhymes & Belief, Center for Media Justice, The Gathering for Justice, Justice League NYC, Opal Tometi and Shaun King
This collection of civil rights activists and groups wrote a letter to the court, not an amicus, expressing their support for Apple.
“Many of us, as civil rights advocates, have become targets of government surveillance for no reason beyond our advocacy or provision of social services for the underrepresented,” they write. “We urge you to consider the dire implications for free speech and civil liberties if the FBI is permitted to force Apple to create technology to serve its investigatory purposes.”
David Kaye is the United Nation’s special rapporteur on the promotion and protection of the right to freedom of opinion and expression. He submitted a report to the U.N. last year, detailing the importance of encryption services. He attached that report to his letter, and also said the following:
“My concern is that the subject order implicates the security, and thus the freedom of expression, of unknown but likely vast numbers of people, those who rely on secure communications,” he writes in his letter.
The U.N.’s high commissioner for human rights voiced his support for Apple in a statement, reiterating that the case is more than just one phone and could have far-reaching implications.
“In order to address a security-related issue related to encryption in one case, the authorities risk unlocking a Pandora’s Box that could have extremely damaging implications for the human rights of many millions of people, including their physical and financial security,” he said.
Lawyers, security experts, and the husband of a shooting victim
Thirty-two law professors have unsurprisingly delved into the specifics of the U.S. magistrates order that compels Apple to create a backdoor for the FBI to access San Bernardino shooter Syed Farook’s iPhone. Here are a few highlights:
“Compelling a private company to create technology with features that the firm deliberately chose to exclude is an unprecedented expansion of judicial power that Congress did not support by passing the All Writs Act,” the document states.
The professors argue that the court lacks the jurisdiction to issue and enforce the order, and that the All Writs Act was intended to be more limited than the government now suggests, among other points. Their dismissal of the use of the All Writs Act can best be seen with the following statement.
“No court has ever issued a valid order that imposes an equivalent burden on a non-party. Our research has not found any case that uses the All Writs Act to require a third-party private entity to design and create new software.”
The experts who filed this brief are Dino Dai Zovi, an expert in iOS security; Dan Boneh, a professor of computer science at Stanford; Charlie Miller, a security researcher; Dr. Hovav Shacham, a professor of computer science and engineering at UC San Diego; Bruce Schneier, a security technologist; Dan Wallach, a computer science professor at Rice University; and Jonathan Zdziarski, an independent forensics researcher.
The last person, Zdziarski, told Bloomberg Business that the FBI doesn’t need Apple to break into the iPhone. He mentions a kiosk in Shenzhen that uses a computer, tweezers, and screwdrivers to copy the “contents of the iPhone” to a chip with more capacity, and then swaps it. He says the FBI could follow a similar strategy.
The brief also delves into the issue of the custom code that Apple would be forced to create. The experts fear it could fall into the wrong hands or simply be kept by Apple.
“Apple is not likely to delete the Custom Code,” the brief states. “It is expensive and difficult to build the Custom Code, but once built, it is trivial for Apple to change it to work on any other iPhone.”
Salihin Kondoker’s wife was a victim in the San Bernardino shooting. Thankfully, his wife survived after getting shot three times on her way back from the restroom during the holiday party.
“It weighs heavily upon me and my family that many of her coworkers did not,” he says in his letter to Magistrate Judge Sheri Pym, who issued the order.
He goes further by saying that initially he was frustrated that Apple was opposing the order, when he was desperate to find out more information on how the shooting happened.
“But as I read more about their case, I have come to understand their fight is for something much bigger than one phone,” Kondoker writes. “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. I support Apple and the decision they have made.”
Apple may have received a large outpouring of support from the tech industry and other individuals, but the company still faces opposition from families of the San Bernardino victims and the district attorney of San Bernardino, all of which support the FBI in this case.
Some of the families of victims of the San Bernardino shootings have written a letter, saying that Apple should help the FBI access encrypted data on the iPhone 5C that belonged to Syed Farook, the shooter.
“Recovery of information from the iPhone in question may not lead to anything new,” they say in the letter. “But, what if there is evidence pointing to a third shooter? What if it leads to an unknown terrorist cell? What if others are attacked, and you and I did nothing to prevent it?”
The “you” refers to Tim Cook, whom the letter addresses, according to the L.A. Times.
San Bernardino’s District Attorney, Michael Ramos, filed an amicus brief in support of the FBI, and said that Apple is infringing on the due process rights that belong to the victims of crime, thanks to California’s Victim’s Bill of Rights.
Strangely, his brief alludes to possible evidence the iPhone 5C could contain.
“The seized iPhone may contain evidence that can only be found on the seized phone that it was used as a weapon to introduce a lying dormant cyber pathogen that endangers San Bernardino County’s infrastructure … and poses a continuing threat to the citizens of San Bernardino County,” he writes.
It’s unclear what he means by this, as there has been no information from the FBI as to what the iPhone could contain, and whether it indeed has a “dormant cyber pathogen.”
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