As expected, a trio of privacy groups -- including the American Civil Liberties Union -- have now filed "friend of the court"
amicus curae briefs supporting Apple's position in the San Bernardino mass shooting case, in which the company -- in the words of Edward Snowden -- finds itself as a big corporation fighting to defend American civil liberties against the government, "rather than the other way around." Two other privacy groups, the Wickr Foundation and Access Now, joined the ACLU in filing briefs.
Following an initial refusal to obey
the judge's order, Apple has since filed a request to Magistrate Judge Sheri Pym asking her to
vacate her original order, which ordered Apple to
provide the FBI with software that would defeat the protections of a seized iPhone 5c (running iOS 9) formerly held by the San Bernardino gunman, Syed Farook -- but owned, as a work-issued phone, by the San Bernardino County Health Department. The ownership issue further complicates the case, as well as the FBI's initial botched attempts to force an iCloud backup of the contents, which inadvertently left the iPhone unable to back up at all.
Apple has objected to the order on a wide variety of fronts, starting with its contention that the basis of the FBI's request -- the All Writs Act --
cannot be used to compel an unwilling and unrelated third-party to do the government's work for it. It has also argued that it would have to deliberately break and permanently weaken the iPhone's security, that it would be an undue burden, and that it is being asked to create tools that do not presently exist -- all conditions various courts (including the Supreme Court) has put on the application of the AWA by the government.
Apple has also alerted the court to a ruling
against the government in a similar case being held in Brooklyn where the government wanted to use the AWA to force Apple to compromise security. The judge in that case found no compelling reason for Apple to be compelled to help decrypt the iPhone in that case. There are also numerous constitutional questions, admissions by the FBI that
it misled the court and public by claiming that it only wanted a "one time, this case only" tool when in fact the government has hundreds -- perhaps thousands -- of seized smartphones it would like to crack into.
"Law enforcement may not commandeer innocent third parties into becoming its undercover agents, its spies, or its hackers," said the ACLU
in its motion. The Wickr Foundation took a more global view, reminding the court that rigid encryption as used by Apple is the basis of a sort of
detente among other nations that would otherwise demand equal "backdoor" access to smartphones as a condition of sale, rendering them largely useless to most people.
"In some countries reliable security tools such as encryption can be the difference between life and death ... The relief sought by the government endangers people globally who depend on robust digital security for their physical safety and wellbeing," the group said. The weakening of encryption in any form, all three groups have argued, would compromise the privacy and security of Americans much more than any small possible gain that could come from providing law enforcement with a tool that could be used -- and misused, by the government and others -- widely.
In addition echoing one of the other victims' mothers, the husband of another victim in the workplace shooting has filed a brief with the court taking yet another approach to refusing the FBI's request, saying that there was no evidence to suggest -- and some evidence to discount -- that anything of value would be found on the iPhone, even if the FBI were able to gain access to it. On top of the various legal arguments, a hearing yesterday by the House Judiciary Committee hinted that it believes it -- rather than the courts -- is the proper place to make law or precedent on security and privacy in the US.
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