Colleagues and rivals including Airbnb, eBay, Reddit and Twitter file brief saying that FBI is executing strategy against Apple ‘unbound by any legal limits’

This article is more than 4 years old

This article is more than 4 years old

The US technology industry formally lined up beside Apple on Thursday in the company’s legal fight with the FBI over encryption.



The phalanx of Silicon Valley colleagues and rivals, including Microsoft, Amazon, Google, Facebook, Yahoo, Cisco and others filed a joint brief in California’s central district court.

A second group of tech firms such as Airbnb, eBay, GitHub, Kickstarter, LinkedIn, Medium, Reddit and Twitter, filed another.

The companies said that if the FBI wins the case, “the assistance it can request is limited only by its imagination” and the variable opinions of judges. Further, they said, the disputed order to write a new software tool so that the FBI can open San Bernardino killer Syed Farook’s iPhone constitutes “classic compelled speech”.

“As storing sensitive personal and commercial data electronically becomes less of a luxury and more of a necessity, protecting that data has also become a necessity,” the attorneys for Microsoft and Google wrote.

“The government’s bid to have technology companies undermine their own security measures is all the more puzzling because the Executive has been encouraging companies to increase cybersecurity in consumer products.”

Telecoms giant AT&T, which has worked closely with the National Security Agency and other law enforcement agencies, also backed Apple.



Compelling Apple to undercut its own security features, the technology firms argued, will effectively “require companies not just to turn over one user’s information but to weaken security measures created to protect all users”.

AT&T said that Congress ought to act, rather than the courts. In a blog post on Thursday, Microsoft chief legal officer Brad Smith agreed: “What’s needed are modern laws passed by our elected representatives in Congress, after a well-informed, transparent, and public debate,” Smith wrote. Smith leads Microsoft in a related battle with the Department of Justice over a contested Hotmail account in Ireland.



The companies joined leading technologists, digital rights campaigners and civil libertarians, and the husband of one of the San Bernardino terror attack victims, to warn of the far-reaching effect of making mobile communications and potentially the entire internet less secure.

The tech firms, echoing two weeks’ worth of Apple statements, warned that the FBI was executing a judicial strategy “unbound by any legal limits” that would hand the government an end-run around “established legal procedures authorized by thorough, nuanced statutes to obtain users’ data in ways not contemplated by lawmakers”.

The filing comes as Silicon Valley has become increasingly concerned about a court order to unlock Farook’s iPhone 5c.



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In a separate filing by cryptography experts and practitioners, including former NSA employee Charlie Miller, the authors acknowledge the FBI’s “legitimate interest” in unlocking the iPhone Farook used. But they argue “the dangers of forcing companies to denigrate the security of their products and of allowing law enforcement to commandeer consumer devices for surveillance purposes is too great”.

Subsequent consumer distrust of the integrity of software updates will also erode internet security, as code fixes to discovered vulnerabilities get ignored, they contend.

Shooting victim’s husband: ‘US should be proud of Apple’

Salihin Kondoker, whose wife was wounded in the San Bernardino shooting, told the court he initially resented Apple’s resistance to the court order, but said he came to sympathize with their position.



“You will have agencies from all over the world to get access to the software the FBI is asking Apple for. It will be used to spy on innocent people,” Kondoker wrote, adding that the US “should be proud of Apple”.



That letter to the court in particular stands in contrast to the FBI’s amicus from San Bernardino victims represented by former federal judge Stephen Larson, which the bureau sought before it had even moved to compel Apple to unlock the iPhone.



The FBI argues Apple is standing in the way of a legitimate investigation into an act of terrorism. “It’s not their job to watch out for public safety,” FBI director James Comey told the House of Representatives this week. “That’s our job.”

His position was put to the test on Tuesday before the House judiciary committee, where ranking member John Conyers, a Democrat from Michigan, expressed his frustration at “what appears to be little more than an end-run around this committee”.

The FBI, said Conyers, seemed to be trying to litigate through case law when the authority to write laws rests with Congress. In a sign that the fight does not split across predictable partisan lines, Texas Republican Ted Poe and Virginia Republican Bob Goodlatte echoed Conyers.

But perhaps the most serious setback so far was eastern district of New York judge James Orenstein’s ruling that the FBI’s request for a similar order in a different case was unconstitutional.



UN weighs in

International attention has surrounded the case as well. Apple has argued that China, which also seeks to compel Apple and other tech companies to permit it so-called backdoor entry into user data, will use the FBI request as a pretext for its own. Ashton Carter, the US defense secretary, has obliquely referred to that possibility in speeches this week warning about permitting China to set the rules of a secure internet.



David Kaye, the UN special rapporteur on free expression, argued in another legal filing backing Apple that the FBI risks violating the International Covenant on Civil and Political Rights.



“To the extent that the subject order leads to vulnerabilities in secure communications, compromises in the ability of individuals worldwide to fight and evade the consequences of censorship, and precedent that could be deployed on other platforms moving forward, I believe that the implications for freedom of expression are potentially quite serious,” Kaye wrote to magistrate judge Sheri Pym, who kicked off the current privacy debate when she ordered Apple to help the FBI unlock the phone.



Kaye’s amicus highlights one of the problems facing the FBI as it tries to assert its case: the international community and Silicon Valley were both outraged by the 2013 revelations of domestic spying by Edward Snowden that presaged Apple’s adoption of higher encryption standards. Kaye condemned “acts of reprisals and other attacks against whistleblowers” in a report to the UN general assembly last year.



“The incentive to steal the Custom Code is huge,” they argue.

In their joint filing, the tech giants affirmed their “routine” cooperation with law enforcement pursuant to “clear rules” bounded by equally clear limits and oversight.



“Absent such rules, there would be a serious risk that law enforcement could abuse its powers to obtain users’ private information,” they wrote.