Tech Groups Back Apple in Court

Say it should not be compelled to hack its own phone

More amicus briefs were being filed with a California court Thursday (March 3) asking it to reverse its decision to force the company to help the FBI hack the phone of one of the San Bernardino shooters.

"As deeply saddened as we all are by the tragic loss of lives in San Bernardino, our response as a nation simply cannot be to weaken the security of all of our citizens," said the Center for Democracy and Technology (CDT) in announcing its brief. "This is about more than just one case or one phone. Rather, it is about the government attempting to mandate technological backdoors that would make our personal records and communications less secure," said Lisa Hayes, CDT Vice President of Programs & Strategy.

CDT's brief said requiring a private company to create a new version of software is an "impermissible expansion" of the All Writs Act, which law enforcement has used to access phones in terrorist investigations, and that undermining encryption will undermine device security generally.

Apple argues that the FBI is forcing it to create a back door entry to the phone's data, while the FBI argues it is just asking Apple to take the drooling guard dog away from the front door so it can try to pick the lock. The "drooling guard dog" is the self-destruct mechanism that deletes info after 10 unsuccessful password tries and the delay feature that means it could take years to attempt the thousands of tries it could take to hack the phone.

"The All Writs Act was initially enacted by the first Congress in 1789. There is simply no conceivable way that the drafters could have intended that it be used as a tool to expand government surveillance," said Lisa Hayes, CDT VP of programs and strategy.

The Software Alliance, the Consumer Technology Association, the Information Technology Industry Council, and TechNet also planned collectively to file an amicus brief. The gist of their argument is that "a court may invoke the All Writs

Act to compel a third party to turn over or provide access to existing information the third party possesses, but may not order a third party to invent a new product--particularly when the government's demand  would create security risks and effectively dictate product design."

They argue that if Apple is forced to develop the new software, it is "inevitable" that the government, federal, state and local, will try to get access to other operating systems, and that the further inevitable result will be that companies will either design products that can more easily meat those government demands, or make them "impossible" to hack. The first would weaken security to the detriment of users' privacy, economic interests and national security. The second could hurt law enforcement and national security.

The Computer & Communications Industry Association, along with the Internet Association, and the i2Coalition, joined the crowd and filed their own join brief, saying they wanted to help Apple "fend off an unprecedented government demand that it undermine encryption."

“While the tech industry understands the government’s desire for information, and respects its mission to keep us safe, we hope the court appropriately weighs the wider issues of security and trust that are also at stake in this case," they said. "If the court sides with the government’s unprecedented demand that Apple develop software to undermine critical security features, there will be dire implications for the  for the public's confidence in the integrity of the Internet, and more importantly for the security of the digital ecosystem.”