ACLU Joins Fight to Keep IPhones Locked

RIVERSIDE, Calif. (CN) - Ordering Apple to unlock one of the San Bernardino shooter's iPhone would create a "catastrophic" precedent by forcing a tech company to weaken the security of its products, the ACLU said Wednesday.

The civil rights group's court brief argued that the FBI's request is unlawful and unconstitutional. Like Apple, the group asserts that the government is overreaching by using the All Writs Act of 1789, and that Congress has reserved authority on whether tech companies should be forced to create backdoors to their products.

ACLU filed the brief in support of Apple's challenge to U.S. Magistrate Judge Sheri Pym's February order requiring the tech company to unlock the iPhone 5c of Syed Farook - who with his wife Tashfeen Malik killed 14 people and injured 22 others during the December terror attack in San Bernardino.

"The government is asking Apple to create a master key of sorts that the government can then use to hack into an iPhone in one investigation but potentially millions of iPhones in many investigations," ACLU staff attorney Alex Abdo said in a video message. "If companies are forced to build backdoors into their products, then they simply can't offer secure products to their customers."

The problem with a backdoor hack is that "once you build one, you can't control who's going to enter," Abdo said.

"Every repressive regime from around the world is going to come knocking if Apple is forced to hack its customers' devices," Abdo said.

The All Writs Act limits the government's warrant authority to cases where a third party "either possesses or controls the information to which the warrant grants access," according to the group's brief.

"Here, the underlying order is a traditional search warrant, which confers on law enforcement the power to search and seize property, not to force a third party to transform what has been seized," the 21-page brief says.

Under the centuries-old law, the government cannot ask Apple to build a hack that it does not want to create, the brief adds.

"Simply put, what the government seeks here is an authority that would undermine American and global trust in software security updates, with catastrophic consequences for digital security and privacy," the ACLU says in the brief.

Under the Fifth Amendment of the U.S. Constitution, there are limits on the type of help or assistance the government can compel Apple to give, the ACLU adds.

"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 Wednesday, Apple also filed a notice of supplemental authority in light of Brooklyn, New York Judge James Orenstein's denial of the government's request to unlock an iPhone in another criminal case.

"Judge Orenstein considered the government's application under the All Writs Act for an order compelling Apple to unlock the passcode on an iPhone running an older version of iOS, a request far less burdensome than the order sought here. Judge Orenstein denied the government's request," Gibson Dunn attorney Theodore Boutrous wrote in the filing.

Orenstein said that a court order for the government would exceed the government's authority and violate the separation of powers under the U.S. Constitution.

The ACLU said it would file the friend-of-the-court brief at the Federal Court in Riverside, California today.

"If Apple loses this fight, then every device in your house that's connected to the internet is going to become a tool for government surveillance and not a tool of modern convenience. Imagine a fridge that takes commands from you verbally. Those will become tomorrow's surveillance devices," Abdo said.

The staff attorney added: "At the end of the day, American companies are either going to be allowed to create secure products or required by the government to break the security of their products. We can't have both."

A hearing on the case is scheduled for March 22 in Pym's courtroom.

Los Angeles U.S. Attorney's Office spokesman Thom Mrozek declined comment.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit