ACLU Files Brief Supporting Apple In San Bernardino Case

The American Civil Liberties Union announced Tuesday it is filing an amicus brief in federal court supporting Apple in the San Bernardino case, citing security and privacy concerns. The brief argues that the court order demanding Apple create software to help the FBI unlock the iPhone of one of the shooters is unprecedented, unlawful and unconstitutional.

“The government’s theory threatens a radical transformation of the relationship between the government and the governed,” the ACLU wrote in the brief. “Law enforcement may not commandeer innocent third parties into becoming its undercover agents, its spies, or its hackers.”

The iPhone in question, which belonged to San Bernardino shooter Syed Rizwan Farook and is owned by his employer, is at the center of a legal battle between Apple and the FBI. In addition to the code needed to unlock it, the phone is equipped with an additional security feature that automatically erases all the phone’s data after 10 incorrect password attempts.

Last month, a federal judge ordered Apple to develop a program to disable certain security features that would allow the FBI access the phone. Apple has refused to comply with the order, expressing concerns about privacy and the security of all phones if a mechanism to disable security features is put in place.

“This case is not about a single phone — it’s about the government’s authority to turn the tech companies against their users,” Alex Abdo, a staff attorney with the ACLU Speech, Privacy, and Technology Project, said in a press release. “The security and privacy of millions of Americans hangs on the trust we place in the companies that make our devices. If the government succeeds in forcing the companies to exploit their users’ trust, it will have set back digital privacy and security in this country by decades.”

Access Now and the Wickr Foundation, privacy and technology groups, also announced today they are filing a joint brief in the case in support of Apple

“A loss for Apple in this case is a loss for human rights around the world,” Amie Stepanovich, U.S. Policy Manager at Access Now, said in a press release.

The FBI believes the phone could contain information on whether the two shooters, Farook and his wife Tashfeen Malik, had any connections to militant groups after the Dec. 2 attack in San Bernardino, California that killed 14 people and injured 22 others. FBI Director James Comey said investigators are “missing 19 minutes” before both shooters were killed in a police shootout, and information from the phone could help determine their route and would also shed light on who they contacted.

This comes after a House Judiciary Committee hearing Tuesday on balancing security and privacy concerns in which Comey called the case “potentially precedential.” Apple’s general counsel Bruce Sewell expressed concern that creating such a “backdoor” would have security implications and could open all iPhones to attacks by hackers and cyber criminals.

“This is not about the San Bernardino case, said Sewell. “This is about the safety and security of every iPhone that is in use today,”

Apple filed an appeal Tuesday against the court order, which was issued by a federal magistrate judge last month. The appeal is set to be heard March 22.