Why We’re Defending Apple

The stakes of the fight between Apple and the FBI could not be higher for digital security and privacy. If the government has its way, then it will have won the authority to turn American tech companies against their customers and, in the process, undercut decades of advances in our security and privacy.

Today, the ACLU — joined by its affiliates in California — is filing an amicus brief in support of Apple’s challenge to FBI efforts to compel the company to help break into an iPhone as part of the investigation into the 2015 San Bernardino shootings. We filed a similar brief several months ago in support of Apple’s parallel fight in Brooklyn. But in this case, the stakes are even higher, because the FBI wants to force Apple to write new computer code to disable security features on one of its devices.

If the government gets its way, the legal precedent set by this case will reverberate far beyond this particular investigation and the single phone at issue. (In fact, just Monday, the magistrate judge overseeing the parallel case in Brooklyn noted the gravity of the government’s legal theory in issuing a comprehensive rejection of it.)

The government’s request relies on the All Writs Act, a gap-filling law passed in 1789, in its bid to compel Apple to create and authenticate software so that the FBI can hack into an individual’s iPhone. That law gives courts the authority to issue orders necessary for it to fulfill its judicial role and enforce its decisions. It does not, however, permit courts to give law enforcement new investigative tools that Congress has not authorized. In this case, the act can’t be used by law enforcement to give itself the unprecedented power to conscript an innocent third party into government service against its will. The use of this law is made all the more sweeping considering the vast cybersecurity and privacy implications of what the government wants to be able to do.

What the government wants here goes beyond the well-established duties of citizens to aid law enforcement — by, for example, turning over evidence or giving testimony — because Apple doesn’t actually possess the information on the iPhone that the government seeks. The order the government has proposed would also violate the Fifth Amendment, which imposes a limit on the assistance that law enforcement may compel of innocent third parties who don’t actually have the information the government is after — a limit the government has crossed in this case. Think of it this way: Could the government get a court order compelling you to spy on your neighbor, or perhaps compelling the friend of a Black Lives Matter organizer to seek out information and report on that person’s plans for a peaceful protest? We don’t think so, and the Fifth Amendment is what defines the outer bounds of law enforcement’s authority to conscript us all into investigative service.

Though the legal arguments may seem esoteric, the power the government aims to establish here would set a troubling and dangerous precedent that would undermine everyone’s digital privacy and security. For example, if the courts uphold the government’s interpretation of the law, the FBI could force Apple to authenticate and deliver malware to a target’s devices using Apple’s automatic-update system. That would put us all at risk when you consider the implications for the rest of our devices. Automatic updates are the vaccinations of the digital world: They only work if they’re taken, and they’re only taken if they’re trusted. Consumers will have little incentive to install automatic updates if they believe they could be government-mandated malware masquerading as security fixes. As the array of mobile devices and web-connected appliances grows, so does the need for regular security updates. The government’s legal theory would undermine this system and the security of the Internet across the board.

This case did not arise in a vacuum. Over the last few years, Congress has considered and declined to compel tech companies to build backdoor access to encrypted data. And, despite the pitched battle in court, Apple and the government agree that Congress is best positioned to grapple with this enormously important question in the first place. Indeed, the House Judiciary Committee held a hearing just yesterday on Apple’s iPhone encryption. Notwithstanding its commitment to public debate on this question, the government has sought to compel Apple to assist law enforcement in mobile device unlocking more than 80 times, largely through secret court filings. (We’ve filed a FOIA request to learn more about these cases and the policy behind this effort.)

In the Brooklyn case, Magistrate Judge James Orenstein ruled, in a thorough 50-page opinion, that the government may not rely on the All Writs Act to compel Apple to assist in unlocking an iPhone. Judge Orenstein recognized a critical flaw in the government’s All Writs Act theory: It contains no “principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values.” It doesn’t take a constitutional scholar to understand that there is a limit on the government’s power to conscript third parties into the service of law enforcement. That’s the kind of limit that distinguishes a democratic government from a police state.

As the ACLU told the court in California today, the government has crossed that limit.

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Anonymous

Thank you!

Ben

The ACLU is defending Apple because it's the right thing to do. Liberty is everything and without it we're slaves. I know what I'm saying is pretty basic stuff but I said it all the same.

Neil

The irony of this case is that news outlets, including CNN, are characterizing this as a case where Apple is refusing to help them get into Syed Farook's phone. If the FBI had just asked Apple to crack one phone for them and retrieve the information from it, as the news outlets are reporting, they'd have done it immediately. CNN especially is extremely FBI biased in every story they have published about this case. It's too bad that misrepresenting the facts in a news story isn't actionable.

The result is ordinary people that don't really understand the issue assume that Apple is pro terrorist or refusing to help the FBI by not complying with a lawful request.

It's disturbing.... It makes you wonder how biased the rest of their stories are.

DF Lickiss

You are perfectly expressing what many conservatives are trying to express when they complain about the media - facts left unexpressed or unexplored that would radically change the understanding of a story.

Ileana

Thank you ACLU! When I think about the San Bernadino shooters' public FaceBook pages that were overlooked by the FBI (that should be First Investigative Effort 101) I was appalled. They should not be able to force the private sector to do their jobs. Thank you again!

Damien McLeod

Can human beings really be trusted with privacy? I'd like to think so, but than I read about all the scam's and scheme's we get up to, and I really wonder. We're a treacherous and underhanded lot.

Nobody Special

The phones of today are designed for one thing: sharing.

They share voice, text, video, images, and more, and a sizable portion of this sharing is directed by the user or not otherwise obscured from the user.

The Terms of Service for Apple, Google, Facebook, and other reprehensibly hypocritical operations are enough to dismiss any expectation of privacy, though since people like the pretty apps, shiny phones, and are ignorant and lazy enough to be guided by the absurd logic that privacy and security, for example, are fundamental and unalienable rights and, therefore, anything anyone wants to keep private, perhaps even indicates is intended to be private by moving a photo to a folder called "Private" or lazily setting a pin on a phone, should be private - even if Reality is full of data leaks and hacked accounts and companies like Apple, Google, Facebook, etc.

People WANT to believe their lazily protected information is private, which is why they support Apple, even though Apple does not support them and is not supporting them.

Superior encryption methods exist today that are readily available, though some amount of learning may be involved. If the San Bernardino cowards REALLY wanted to keep their data private, they could have EASILY used an encryption method that is considered far enough beyond the best computing resources of today that there would be NO DEBATE AT ALL or even a legal case between Apple and the FBI since NEITHER entity could do anything to decrypt the data.

Of course, because of how Google and Apple devices are setup (to allow free access by Google and Apple), the best place for private data, encrypted or not, is NOT on these devices.

If the ACLU wants to take on a matter of substance, consider what Apple and Google and Facebook are getting away with simply because people are too lazy to read terms or too ignorant to understand or think independently about what elements of the overwhelmingly self-serving terms are even enforceable. Anyone can write some convenient rules, pretend that - as in the case of WHOIS queries run from a terminal - these rules were agreed to by the user when the user made the WHOIS query even though the user could not POSSIBLY have read them until they were presented AFTER the action that allegedly represented the user's agreement.

Privacy will NEVER be convenient, and supporting Apple in this matter, in addition to perverting its position into a Heroic Defense of Privacy, only reinforces the absurdity that companies that already steal whatever they can sell will or have any interest in protecting the same for its users.

This opinion from the ACLU is consistent with its typical support of legal positions that may seem to defend the rights of the one but actually diminish the rights of the many. The United States will exist until its people allow it to be destroyed, and the ACLU is at the front of this ignominious line defending the rights and freedoms of people who openly and unambiguously declare their intent to destroy the United States. This country exists because it has been able to preserve the rights of the many even if this limits the rights of the few. President Lincoln shutdown the press in the North during the Civil War - something he did not have explicit authority to do - because advancements in photography allowed battlefield photographs to be taken and published in the New York Times and other newspapers and people were sickened by the gruesome images to such extent that Lincoln feared morale and support for the war in the North, with its far greater newspaper circulation and readership compared to the South, would be lost, along with the war and the country. However, because the Lincoln, at his inauguration, swore to "preserve, protect, and defend the Constitution of the United States," his closure of the press in the interest of preserving the nation and the Constitution was within his authority and of greater significance than the explicit protections of the press.

None of the rights and freedoms this country stands for will matter if this country does not exist. The ACLU should consider whether its preference for ambulance chasing and "life should be fair" legal positions ultimately and weakens the country and Constitution it attempts to protect, if only à la carte.

godsfather60@gm...

How come I know that they bounty wolfers hacked my mi-fi, serial isp, entry, use x-rays, radar stimuli, taser shock, or whip antenae, fish finders, multiple, MF radios, canvassing boy scouts, by x-sex offenders, huntington more of them, ultra sound, domestic violence, your ears, and hearing, recognitition, isolating, reputation, represssion, breaking entering, reading, document invasion, possesion, reposessive motives, even louse, and STD,s to justify nasi, communist, extremism, sexism, and disquise it as discriminantion, violating our privacy, right to buisness, reality, to marriage, or social, without isolation.

Chris

Apple should provide *everyone* with enough documentation to customize their hardware, not just the FBI. Locked down black-box hardware is bad for the liberties of everyone. The public is being manipulated to demand what is opposite to their interests. They misuse the term "backdoor". If Apple can get to the data, the backdoor already existed as that was not the intent of the user. Apple is trying to hide that fact, and to further their DRM capabilities which will of course be used to squelch independent views and peer to peer communication. The public's interest is in preventing centralization of power, not helping Apple cover up broken security software.

Tami

The FBI needs to figure out how to get the information they need by doing their job and not by bullying and lying or manipulating the public or Apple. They have no right whatsoever to demand Apple to turn over the information or write a program to access this phones info. It is absolutely ridiculous and I am ashamed to think this is how the people in "power" operate. Pathetic and if Apple ends up having to do this it will be the beginning of the end for technology and privacy.

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