The giants of Silicon Valley don’t want Apple to help the FBI break into an iPhone used by one of the San Bernardino terrorists. And they don’t want to be asked to undermine the security of their own products either.
In an amicus brief filed by 15 tech titans, including Amazon, Cisco, Facebook, and Google, a who’s who of Silicon Valley has joined dozens of other companies, privacy groups, and security experts rallying to Apple’s side in a heated court battle that has ignited a national controversy.
The companies “often compete vigorously with Apple,” but “here speak with one voice because of the singular importance to them and their customers,” the brief states.
Microsoft, Pinterest, Box, Evernote, Mozilla, Nest Labs, Snapchat, WhatsApp, Yahoo, and Slack are also cosignatories on the brief.
The companies “reject the government’s unsupported assertion that the law allows it to commandeer a company’s own engineers to undermine their products’ data security features.”
The coalition argues that the government has reinterpreted the All Writs Act, a statute invoked by the Justice Department to compel Apple to design security-suppressing software, as an “open-ended source of new powers.”
Rather than defer to elected representatives to navigate the complexities of novel technology and new challenges faced by law enforcement, the companies believe the FBI is exploiting the court system to grant itself new powers, powers no legislature has authorized.
“Congress has never seen fit to give law enforcement the power it now seeks from this court,” the brief states.
The companies argue that if the FBI prevails, and Apple is forced to defeat its own security features, future legal challenges in other jurisdictions would then dictate encryption policy — leaving the industry to grapple with unpredictable outcomes and a patchwork of potentially contradictory rulings, rather than a uniform framework for how internet companies can provide security tools to their consumers.
This would also hijack a much needed public debate, the companies claim, in which investigations and the demands of law enforcement dictate national policy.
“The American people as voters are cut out of this important debate, because their elected representatives have no opportunity to weigh complex policy choices,” the coalition argued in the brief. “And the American people as consumers are cut out of the debate, because they cannot select products based on company policies or security features if the government may override those policies and features without notice.”
The coalition also takes issue with the government’s claim that Apple is grandstanding — that the company's defiance stems from a callous concern for its self-image. How companies store consumer information helps to define the identity of their products, the companies insist, characterizing the government’s demands as unreasonable and “contrary to [a firm’s] core values.”
The dilemma is not that Apple is incapable of designing FBI-sanctioned software, Google, Facebook, and Amazon argue, it's that if Apple does, the company's products will cease to be Apple's.
Collectively, the 15 tech companies respond to tens of thousands of law enforcement requests every year. And the Silicon Valley coalition highlighted their continued cooperation with law enforcement.
But according to the National Sheriffs’ Association, the Federal Law Enforcement Officers Association, and the Association of Prosecuting Attorneys, the tech industry’s stance on San Bernardino poses a risk to the public.
“If Apple can refuse lawful court orders to reasonably assist law enforcement, public safety will suffer," the law enforcement groups said, in separate brief supporting the FBI. "Crimes will also go unsolved and criminals will go free."
The associations emphasized that evidence gathered from mobile devices often proves crucial to their work. In fact, they argued, the robust encryption that Apple and other companies offer their customers has already imperiled investigations across the United States.
They also questioned Apple’s corporate decision making, arguing that, in the past, Apple has complied with court orders, but has changed course by advancing its technology to thwart government searches.
Court documents reveal that Apple has assisted law enforcement in extracting information from iPhones in at least 70 other cases. But none of these devices ran on the most current operating system, iOS 9 — which no longer allows Apple to pull data from a locked device. Apple insists that it has never before been asked to create security-suppressing software, and considers the government’s demands in the San Bernardino case dangerous and unprecedented.
“As this case illustrates, [Apple] has redesigned its iOS operating system to make its products far harder to search pursuant to a warrant, and in this case decided not to do what it can to help investigate the terrorist and his murderous crimes,” the law enforcement groups contend.
The consequences of inaction, they add, could not be more dire.
“It is as real as a killer gone free, as real as a pedophile planning for his next prey.”
Hamza Shaban is a technology policy reporter for BuzzFeed News and is based in Washington, DC.
Contact Hamza Shaban at Hamza.Shaban@buzzfeed.com.
Got a confidential tip? Submit it here.