Apple Inc. drew support for its fight with the government over a terrorist’s iPhone from digital-rights groups, a United Nations official and even a man whose wife nearly died in the terror attack, as a deadline approached to weigh in on the historic privacy battle.
“Neither I, nor my wife, want to raise our children in a world where privacy is the trade-off for security,” said Salihin Kondoker, an information technology consultant in San Bernardino, California, describing how his wife was shot three times in the December attacks there but survived.
The U.S., which says it wants to defend people like Kondoker from such attacks by unlocking the phone to learn its contents, will now face the surprising story of a man who would rather promote what he sees as America’s core values than avenge his wife’s injury, along with other powerful narratives. Other arguments cited to defend Apple range from a potential ripple effect on the $120 billion app economy to the difference between life and death under repressive regimes.
The amicus, or "friend of the court," briefs were published on Apple’s website Thursday before they hit the legal docket in Riverside, California. There, all filings – including some in support of the U.S. – are expected before midnight. If accepted by U.S. Magistrate Judge Sheri Pym, they could help her decide whether to uphold her order that Apple has to help the FBI unlock the encrypted iPhone. It was used by Syed Rizwan Farook, who died in a shootout with law enforcement in San Bernardino on Dec. 2 following an attack that killed 14 people and injured many others, including Kondoker’s wife.
Yahoo Inc. and Apple’s arch-rival Samsung Electronics Co. have also weighed in, though without filing formal briefs.
‘Basic human rights’
“Deliberately compromising digital security would undermine human rights around the globe,” said Access Now and the Wickr Foundation, which advocate for digital rights. They argued that under international law the U.S. has a duty to “foster basic human rights such as freedom of expression and privacy,” and noted that criminals and authoritarian regimes could exploit the same technology that the U.S. says it needs to help unlock the phone.
“In some countries, reliable security tools such as encryption can be the difference between life and death,” the two groups said.
Kondoker wrote, “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.” He said he doesn’t believe there is any useful information on the device anyway, as it was a 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, the co-attacker.
Apple argues, and has found support from a magistrate judge in Brooklyn, New York, that the Justice Department lacks authority 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 U.S. says a 1789 law, the All Writs Act, gives it the authority it needs.
$120 billion in apps
David Kaye, an expert on human rights with the United Nations, used a 2015 report for the U.N.’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.
“I believe that the implications for freedom of expression are potentially quite serious,” Kaye said of the lawsuit.
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 business is responsible for around 1.7 million jobs in the U.S. today, up from zero in 2007, the group said.
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 American Civil Liberties Union weighed in, echoing many of Apple’s own legal arguments. The ACLU said that the government doesn’t have the authority to “enlist private third parties as its investigative agents” and that the case raises questions about the limits of government power. It said weakening digital security could endanger human rights globally.
From Samsung to Yahoo
Companies haven’t yet made legal filings, but many have already expressed support.
In its statement, Samsung said any requirement to build back doors into its devices would undermine trust. The world’s largest smartphone vendor said it hadn’t decided if it will file a friend-of-the-court brief in support of its arch-rival.
Microsoft President Brad Smith on Monday reiterated his backing for the iPhone maker’s resistance to the government order. At a cybersecurity conference in San Francisco, Smith emphasized the need for U.S. laws to catch up with technological advances, and gave examples of his company complying with “lawful” government requests.
Google parent Alphabet, Facebook Inc. and Twitter Inc. also were among companies that as of last week planned to join in support of Apple and oppose the court-ordered creation of a way in to Farook’s phone. A Yahoo spokesperson said the company supports Apple, saying it is concerned the government’s request could turn the U.S.’s limited power to seek help with law enforcement under the 1789 All Writs Act "into an unbounded reservoir of governmental power, putting digital security at risk."
Mozilla Chief Legal and Business Officer Denelle Dixon-Thayer said in an email that the free-software community intends to support Apple through a court filing, along with Google, Nest Labs, Facebook, WhatsApp, Evernote and Snapchat.
The amicus brief
Courts routinely consider "amici curiae" filings to decide lawsuits that, as in the iPhone case, involve broader public interests or question how existing law should be applied to new technologies. Last year, the U.S. Supreme Court considered 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 weighed a brief by the Electronic Privacy Information Center before ruling that police can’t search cell phone data without a search warrant.
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).