March 2, 2016

RIVERSIDE, Calif. — The American Civil Liberties Union will file a friend-of-the-court brief today supporting Apple’s legal fight against a court order to help the FBI unlock an iPhone belonging to one of the San Bernardino shooters.

The brief argues that the order is unconstitutional and goes beyond the authority of the law the government is relying on, the All Writs Act. The brief calls the government’s effort unprecedented because it would for the first time force a technology company to create software designed to weaken the security of its own devices.

“This case is not about a single phone — it’s about the government’s authority to turn the tech companies against their users,” said Alex Abdo, a staff attorney with the ACLU Speech, Privacy, and Technology Project. “The security and privacy of millions of Americans hangs on the trust we place in the companies that make our devices. If the government succeeds in forcing the companies to exploit their users’ trust, it will have set back digital privacy and security in this country by decades.”

The brief points out that Congress has deliberately withheld the authority to require technology companies to bypass their devices’ security features.

“If the government prevails, then this case will be the first of many requiring companies to degrade the security and to undermine the trust in their products so essential to privacy in the digital age,” the brief says. “For the many users who rely on digital devices to secure their information and communications, including members of vulnerable populations who rely on mobile devices to access the Internet, this burden would be severe.”

The brief also notes that the Fifth Amendment limits the nature of the assistance that law enforcement can compel people or companies to provide.

“The government’s theory threatens a radical transformation of the relationship between the government and the governed,” the brief says. “Law enforcement may not commandeer innocent third parties into becoming its undercover agents, its spies, or its hackers.”

On Monday, a federal magistrate judge in Brooklyn denied the government’s request to force Apple to unlock an iPhone for a drug investigation. In that case, the phone used an older version of iOS that Apple could unlock without new software. The judge ruled that an order forcing Apple to unlock the phone would exceed the government’s authority under the law, and that any other interpretation of the law would likely violate the Constitution’s separation of powers.

Today’s brief is at:
https://www.aclu.org/apple-amicus-brief
 

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