EFF in the News
FRIENDS OF APPLE — Access Now and the ACLU on Wednesday filed amicus briefs siding with Apple in its court fight over a Justice Department demand that it help unlock an iPhone used by one of the San Bernardino terrorists. The Electronic Frontier Foundation, the Center for Internet and Society, and a host of technology companies including Microsoft and Google — more on them below — have said they’ll be filing by today's deadline.
“We’re focusing on the First Amendment issues,” said Nate Cardozo, an EFF staff attorney. Computer code is considered speech under the Bill of Rights so any government order obliging Apple to write code has constitutional ramifications, he said.
Cardozo predicted that the amicus briefs will focus on constitutional issues more than Apple’s own court filings. Apple is fighting the government mainly on statutory grounds, challenging courts’ ability to compel it under the All Writs Act.
In a separate briefing the Electronic Frontier Foundation (EFF) and 46 technology industry experts, "including inventors of modern cryptography," told the court forcing Apple to open a backdoor into the FBI's iPhone evidence violates the company's free speech rights.
"The court order is akin to the government dictating a letter endorsing backdoors and forcing Apple to sign its forgery-proof name at the bottom,'' said EFF Civil Liberties Director David Greene. "What the FBI asked the court to do violates free speech rights and puts the security and privacy of millions of people at risk. We are asking the court to throw out this dangerous and unconstitutional order."
"Removing device encryption due to lack of customer use is an incredibly poor excuse for weakening the security of those customers that did use the feature," said Jeremy Gillula, staff technologist with the Electronic Frontier Foundation.
"Given that the information stored on a tablet can be just as sensitive as that stored on a phone or on a computer, Amazon should instead be pushing to make device encryption the default -- not removing it," Gillula said.
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Nate Cardozo, a lawyer for the Electronic Frontier Foundation, finds this hard to believe.
“The best hackers in the world are employed over at Fort Meade,” where the NSA is located, says Cardozo. “They’re not at Quantico,” the FBI’s home base. “The phone is at Quantico. That, I think, speaks volumes about what’s going on here.”
Either the NSA doesn’t have the ability to open the phone or doesn’t want to risk exposing its methods in a very public case like the San Bernardino one. Or there’s another reason why the FBI might be claiming helplessness when it comes to the phone.
Cardozo and other experts say the fact the FBI has opted for a very public legal battle in the case when other methods for getting the data may be at its disposal suggests that the case is not about getting data but about setting a legal precedent. Specifically, a precedent that could compel Apple and other tech companies to create or alter their software to make it less secure.
“This case was selected very carefully by the FBI in order to develop precedent going forward,” Cardozo says. “They want to be able to order American tech companies to include (or remove) specific features in order to enable surveillance. They’ve never before claimed such a power.”
In this episode of The Heartland Daily Podcast, managing editor Jesse Hathaway talks with Electronic Frontier Foundation staff attorney Sophia Cope about the Federal District Court for the District of Central California’s recent demand that Apple, the $700 billion tech company producing consumer products like the iPhone and iPad, assist the Federal Bureau of Investigations with their investigation into the December 2, 2015 San Bernardino terrorist attack by devising a way to unlock the deceased terrorist’s iPhone without a password.
Apple is fighting the court order, claiming FBI is seeking unconstitutional powers that could lead to massive invasions of consumers’ privacy in the future by government agencies, Cope says. By requiring a company to hack its own products, the government is seeking to set a dangerous precedent that could lead to mass surveillance.
Requiring the software and hardware company to create an operating system lacking the privacy measures installed on the iPhone is also a form of involuntary conscription, Cope says, and technology companies are right to defy the order and protect their consumers’ privacy.
The Electronic Frontier Foundation was pleased by the decision, EFF Executive Director Cindy Cohn said, noting that the operating system involved in the New York case is an older version than the phone at issue in the San Bernardino attack.
"The judge decided that federal agents can't try to get a court to do something that Congress has considered but not allowed the government to demand -- specifically that companies like Apple do not have to help the government bypass the security they have built into devices," she told TechNewsWorld.
The court rejected the argument that the government is only seeking Apple's compliance on one device, Cohn noted, citing a statement in the decision that "the burdens the government seeks to impose on Apple under the authority of the All Writs Act are not nearly so limited."
A dozen other cases with similar demands are pending in federal courts across the country, she added.
Code is written primarily to communicate to machines. Andrew Crocker, staff attorney at the Electronic Frontier Foundation, compares source code to other technical forms of communication like sheet music or mathematical equations.
"Programmers write code to have computers do things, but other people can read that code, because it has comments in it," said Crocker, whose foundation filed court papers to support Apple. "Just because you and I don't understand it doesn't mean there aren't some people who do. Programmers will tell you there is a right way to write code: There's cool code and elegant code. It's a form of communication separate from or alongside form the instructions for the computer."
“Magistrate judges don’t write 50-page orders for all of their warrants,” Andrew Crocker, staff attorney at the Electronic Frontier Foundation, told me. “This is clearly one where the judge knew there would be a lot of attention paid to it, whether that’s for an appeal, or for the public, or both.”
“Brazilian local courts have had a long history of issuing such broad and disruptive injunctions in their attempts to force Internet intermediaries to comply with state investigations or orders,” says Electronic Frontier Foundation International Rights Director Katitza Rodriguez, in an email to the Monitor.
“This is one more in a trend, especially against a company, WhatsApp, that does not have boots on the ground, and against an executive of Facebook, which owns WhatsApp and is a separate legal entity.”