Tech Groups Back Apple in Court

More amicus briefs were being filed with a California court Thursday asking it to reverse its decision to force Apple to help the FBI hack the phone of one of the San Bernardino shooters.

"As deeply saddened as we all are by the tragic loss of lives in San Bernardino, our response as a nation simply cannot be to weaken the security of all of our citizens," said the Center for Democracy and Technology. "This is about more than just one case or one phone. Rather, it is about the government attempting to mandate technological backdoors that would make our personal records and communications less secure," said Lisa Hayes, CDT VP of programs and strategy.

Its principal arguments are  that requiring a private company to create a new version of software is an "impermissible expansion" of the All Writs Act, which law enforcement has used to access phones in terrorist investigations, and that undermining encryption will undermine device security generally.

Apple argues that the FBI is forcing it to create a back door entry to the phone's data, while the FBI argues it is just asking Apple to take the drooling guard dog away from the front door so it can try to pick the lock. The "drooling guard dog" is the self-destruct mechanism that deletes info after 10 unsuccessful password tries and the delay feature that means it could take years to attempt the thousands of tries it could take to hack the phone.

"The All Writs Act was initially enacted by the first Congress in 1789. There is simply no conceivable way that the drafters could have intended that it be used as a tool to expand government surveillance," said Hayes.

The Software Alliance, the Consumer Technology Association, the Information Technology Industry Council, and TechNet also planned collectively to file an amicus brief. The gist of their argument is that "a court may invoke the All Writs Act to compel a third party to turn over or provide access to existing information the third party possesses, but may not order a third party to invent a new product--particularly when the government's demand  would create security risks and effectively dictate product design."

They argue that if Apple is forced to develop the new software, it is "inevitable" that the government, federal, state and local, will try to get access to other operating systems, and that the further inevitable result will be that companies will either design products that can more easily meet those government demands, or make them "impossible" to hack. The first would weaken security to the detriment of users' privacy, economic interests and national security. The second could hurt law enforcement and national security.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.