If Apple obeys the FBI’s order, it would set a dangerous precedent for the future, briefs claim.
32 of the world’s largest internet, social media, and technology companies have united behind Apple, as the Cupertino-based tech giant fights the FBI’s demands to unlock the phone of Syed Farook, one of the San Bernardino shooters.
The companies filed two separate amicus briefs yesterday (March 3) in the United States Distrct Court for the Central District of California, where Apple is challenging a court order to comply with the FBI’s demands. Parties not directly involved in a court case, known as “amicus curiae,” or “friend of the court,” file these briefs to offer unsolicited additional information to a court, in the hope of influencing a case’s outcome. The two new filings join a long list of law professors, civil liberties activists, and consumer groups supporting Apple in the case.
Both of the briefs denounce the government’s use of the All Writ’s Act to demand that Apple develop a special “master key” software version of its operating system that can bypass existing security measures, and ultimately grant authorities access to Farook’s phone. The 227-year-old law empowers courts to issue orders to third parties when no other specific statute applies. It has been used in the past to compel telecommunications companies to install wiretaps or record phone conversations.
If Apple obeys the FBI’s order, it would set a dangerous precedent for the future, both briefs claim. Law enforcement agencies of all types could demand tech companies provide access to private user data. More worryingly, governments abroad could demand Apple do the same.
The 34-page brief submitted by AirBnB, Atlassian, Cloudfare, eBay, Github, Kickstarter, Linkedin, Mapbox, Meetup, Reddit, Square, Squarespace, Twilio, Twitter, and Wicker reads (case citations have been edited out):
Make no mistake: If the government prevails in this case, it will seek many such decisions. The government’s motion reassures this Court and the public that the request here is a one-time-only hack. But there arealready strong indications that law enforcement will ask for broad authority under the All Writs Act on facts far different from the terrorism investigation at hand.
For example, FBI Director James Comey just days ago told the House Judiciary Committee that this Court’s decision will be “potentially precedential” in other cases involving similar technology. Manhattan District Attorney Cyrus Vance, Jr., likewise told journalists that he“[a]bsolutely” would seek access to all locked phones linked to criminalproceedings if the government’s theory were to prevail here.
That is exactly why this Court should reject any case-specific arguments the government makes here. Investigative tools meant for extraordinary cases may become standard in ordinary ones. As one court has already observed, “[n]othing in the government’s arguments suggests any principled limit on how far a court may go.
A 31-page brief, submitted by Amazon, Box, Cisco, Dropbox, Evernote, Facebook, Google, Microsoft, Mozilla, Nest, Pinterest, Slack, Snapchat, WhatsApp, and Yahoo, also denounces the invocation of the All Writs Act. The companies argue that Congress, not the judiciary, should decide when the act is implemented. The brief reads:
In light of rapidly evolving technology and its tremendous social benefits, Congress is better suited to confront the issues here. And indeed, Congress has already grappled with these issues on many occasions—leading to a comprehensive legislative scheme for regulating investigative methods.
Intel and AT&T are among the companies that have independently submitted similar briefs to the court. On Thursday (Mar. 3), Apple formally filed an appeal against the court order. As the case goes forward, the US government will be fighting not just Apple, but the entire US tech industry.