EFF and 46 Technology Experts Ask Court To Throw Out Unconstitutional Apple Order

Riverside, California—The Electronic Frontier Foundation (EFF) and 46 technology industry experts, including inventors of modern cryptography, told a federal court today that forcing Apple to write and sign computer code disabling crucial iPhone security features that protect millions of users violates the company’s free speech rights.

The Federal Bureau of Investigation (FBI) should not be allowed to, in effect, stand over the shoulders of Apple programmers and force them to create and sign off on code that would decimate the iPhone’s security, EFF said. The signed code would send a clear message that it’s OK to undermine encryption that users rely on—a view the government endorses but Apple fiercely opposes. EFF made its arguments in a friend-of-the-court brief filed today in U.S. District Court for the Central District of California. The brief was signed by 46 technologists, security researchers, and cryptographers, including digital signature pioneers Martin Hellman and Ronald Rivest.

The phone at issue was used by a suspect in December’s San Bernardino mass shooting who was killed after the attack. A federal court issued a preliminary order that would require Apple to edit iOS to disable security features that protect the phone’s contents from surveillance, hackers, and thieves. The code must be digitally signed by Apple in order to run on the iPhone—a signature that guarantees the code is approved and endorsed by Apple.

“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.  “In our democracy, no one—not technology companies, coders, or average citizens—can be forced to write an article, carry a sign, post an update on Facebook or write and sign computer code that communicates or endorses a government idea that they don’t agree with. 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.”

EFF has particular expertise in the First Amendment issues in this court battle, as it spearheaded cases in the early 1990s and 2000s leading courts to recognize computer code merited protection under the Constitution.  

A magistrate judge in Riverside, California, granted the FBI’s request under the All Writs Act—a statute that gives judges the ability to command an entity or person assist in the enforcement of an order, as long as it’s necessary and legal. But the order fails to meet that standard for many reasons, including that it violates Apple’s constitutionally guaranteed right against being compelled to speak for the government.

“Apple has said that it believes the best thing for the world is for all of us to have uncompromised security, not compromised security,” said EFF Executive Director Cindy Cohn. “What the FBI is demanding is that Apple publicly capitulate to the government’s views, and the fact that it would have to do so through writing and signing code makes no difference. This is far more than simply requiring Apple to turn over evidence that it has in its custody; this violates the First Amendment.”

For the full amicus brief:

https://www.eff.org/files/2016/03/03/16cm10sp_eff_apple_v_fbi_amicus_court_stamped.pdf

For more on this case:

https://www.eff.org/cases/apple-challenges-fbi-all-writs-act-order