ACLU Supports Apple in Case Raising Key Legal Question For Age of Encryption
& Eliza Sweren-Becker, Attorney, ACLU Speech, Privacy, and Technology Project
With private companies in control of more and more of our private information, the government has been aggressive about leveraging that fact to seize data. But now, it wants the power to force companies to assist in investigations even when those companies don’t possess the information the government is after.
A few weeks ago, the government asked a federal judge in Brooklyn to force Apple to unlock and potentially decrypt a mobile Apple device that it seized pursuant to a warrant. Apple does not own the device or the data stored on it, and it has nothing to do with the underlying investigation. Nonetheless, the government is asserting that the court can order a device manufacturer to break into an individual’s Apple device even where the owners have chosen to protect their information through the use of a passcode. Fortunately, the judge issued a preliminary decision publicly asking Apple whether the assistance the government wants is technically feasible and whether it would be unduly burdensome.
Today, the ACLU filed an amicus brief in federal court in support of Apple’s right to refuse government orders to break into users’ encrypted phones. As individuals and technology companies increasingly use encryption to safeguard communications and private records, this issue will increasingly affect everyone’s right to protect the privacy and security of their personal data.
In our amicus brief (filed with other civil liberties advocates including the NYCLU, EFF, and staff from the Stanford Center for Internet and Society), we argue that what the government has asked for is unlawful. We assert that the government does not have the authority to compel such extraordinary assistance from a third party that does not possess the information the government seeks. And we argue that it would violate the Constitution to compel Apple to break into a user’s device.
When the government seizes information pursuant to a warrant and obtains data that it can’t understand, the government is free to use alternative means to get what it needs. In this case, for example, the government might be able to seize unencrypted backup copies of the data. But the government cannot conscript an unwilling technology company to conduct its surveillance—just like it can’t force a locksmith to break into the homes of customers. It doesn’t matter whether Apple has the technical ability to bypass a user passcode or not. (For devices running Apple’s operating system iOS8 and later, Apple says that it can’t decrypt the information stored on them.) Just because a device manufacturer could unlock and decrypt the data on a device, and has done so in the past voluntarily, does not create an ongoing obligation for the company to continue to offer that service to the government in the future.
The government’s request in this case is especially troubling because it seems designed to bypass the vigorous public debate taking place over whether technology companies should be required to build “backdoors” into their encrypted devices to facilitate government surveillance. The debate has included representatives from every part of government, including technology experts within the White House and former national security officials. Acutely aware of this ongoing debate, Congress has taken no action requiring companies to assist law enforcement in this way. It remains perfectly lawful to offer secure and encrypted devices. Mandating such assistance would mean companies couldn’t compete in the global marketplace for the secure products and communications tools that individuals are now demanding. Perhaps more importantly, allowing the government to conscript private parties into serving as the government’s surveillance agents would not only be unconstitutional, but could fundamentally alter the nature of how citizens relate to one another.
What the government seeks is a sweeping new investigative power—under which anyone who provides a secure device could potentially be conscripted by the government to break the security of that product. Encryption is an important tool, not only for human rights activists and journalists, but for anyone with personal information such as health and financial records to protect. That’s why it’s essential to push back against government efforts that would undermine our access to encryption and secure technologies.
On February 29, 2016, the court issued a decision denying the government’s application to use the All Writs Act to compel Apple to unlock the mobile phone. [Opinion: https://www.aclu.org/legal-document/ruling-apple-iphone-case-brooklyn]
While the court today denied our request to participate as amicus, it did however ask that Apple supplement its briefing to include a fuller articulation of its position on whether the court has the power to compel Apple to provide the technical assistance the government seeks.We encourage Apple to offer a full-throated defense of its right to resist government efforts to compel this sort of unprecedented and extraordinary assistance.