Dozens Of Tech Experts Ask Court To Not Force Apple To Unlock iPhone

The day after Apple filed its formal objection to a Feb. 16 court order compelling the company to assist the FBI in unlocking an iPhone that belonged to one of the terrorists who killed 14 people last December in California, a group of nearly four dozen tech industry experts have asked the court to rethink its decision.

The issue, for those coming late to this story, involves privacy protections on the iPhone. If FBI agents fail too many times at guessing the correct passcode, the information they seek could be wiped from the device.

In the hope of getting around this, the FBI has asked Apple to push an update to this iPhone that would allow them to unlock the phone without the risk of erasing the desired content.

Apple contends that there is no legal precedent for forcing a tech company to make its devices less secure. The company is also concerned that aiding the FBI by creating this hack would set a dangerous precedent.

Last week, Apple filed its motion to vacate [PDF], arguing — among other things — that creating a back door to bypass iPhone encryption has the negative effect of “making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance.”

This morning, a supporting brief [PDF] filed by the Electronic Frontier Foundation and 46 different experts attempted to bolster Apple’s position in this case.

“What the government blandly characterizes as a request for technical assistance raises one of the most serious issues facing the security of information technology,” begins the brief, “the extent to which manufacturers of secure devices like Apple can be conscripted by the government to undermine the security of those devices.”

The authors of the brief include professors in engineering, computer science, cryptography, and other fields from MIT, Rice University, Cornell, UC Berkeley, Johns Hopkins, University of Pennsylvania, Yale, Harvard, Carnegie Mellon, Princeton, and numerous other institutions. They contend that forcing Apple and its employees to create a workaround to effectively weaken the product they developed “places a significant burden” on their First Amendment rights.

The court has directed Apple to create this new code to assist the FBI. In order for that code to work, it must contain Apple’s digital “signature,” which is an indicator that the company has approved and endorsed the code. Since Apple would be doing this work under duress, the tech experts say this would be compelling the company to violate its constitutional right to free speech.

“Apple’s code and digital signature, separately and together, affirm a commitment and belief regarding the authenticity of the code and the value of their customer’s privacy and security,” explains the brief. “The order compels Apple and its engineers to repudiate that belief, and undermine the very security they designed. In other contexts, compelled speech and affirmations of belief that substantially hinder the speaker’s ability to communicate its desired message are clearly unconstitutional.”

In a statement, EFF Civil Liberties Director David Greene likens the court order to the government forcing Apple to endorse something it can’t possibly agree to.

“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,” explains 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.”

The Feb. 16 order to assist the FBI was granted under a statute known as the All Writs Act, which allows a judge to compel a person or group to assist enforcing a court order — but only if that assistance is both necessary and “agreeable to the usages and principles of law.”

However, earlier this week, a federal judge in a similar case in New York ruled that the All Writs Act did not give the government the authority to force Apple to assist the FBI. And, concluded the judge, even if the Act did apply, Apple was too far removed from the criminal conduct involved, and would be unduly burdened by the requirements of such an order.

While the New York ruling does help to support Apple’s position, it does not resolve the California matter.

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