Facebook, Twitter side with Apple in encryption fight

Facebook and Twitter are siding with Apple in its fight against a court order requiring the company to help investigators break into an iPhone used by one of the San Bernardino mass shooters.

A U.S. has magistrate ordered Apple to produce software that would give investigators access to the iPhone at issue. Apple has until Tuesday to challenge the order, setting the stage for a legal clash that experts say could change the relationship between tech companies and government authorities in the U.S. and around the world.

Twitter's chief executive Jack Dorsey tweeted that the microblogging site stands with Apple Inc. and its CEO Tim Cook and thanked Cook for his leadership.

Facebook in a statement said it condemns terrorism and also appreciates the essential work of law enforcement in keeping people safe. But it said it will "fight aggressively" against requirements for companies to weaken the security of their systems.

"These demands would create a chilling precedent and obstruct companies' efforts to secure their products," the statement said.

The FBI and prosecutors are seeking Apple's assistance to read the data on an iPhone 5C that had been used by Rizwan Farook, who along with his wife, Tashfeen Malik, carried out the San Bernardino shootings that killed 14 people and wounded 22 others at a holiday party.

The government isn't asking Apple to help break the iPhone's encryption directly, but to disable other security measures that prevent attempts to guess the phone's passcode.

Cook argues that once such a tool is available, "the technique could be used over and over again, on any number of devices," even as law enforcement insists that safeguards could be employed to limit its use to that particular phone. He has posted an open letter on how the FBI's request might have implications "far beyond the legal case at hand."

For months, Cook has engaged in a sharp, public debate with government officials over his company's decision to shield the data of iPhone users with strong encryption — essentially locking up people's photos, text messages and other data so securely that even Apple can't get at it. Law-enforcement officials from FBI Director James Comey on down have complained that terrorists and criminals may use that encryption as a shield.

"This is really a deep question about the power of government to redesign products that we use," said Ryan Calo, a University of Washington law professor who studies data security and privacy issues.

While other tech companies have spoken against broad government surveillance in the past, the Obama administration has recently sought to enlist the tech industry's help in fighting terrorism. Several companies have recently heeded the administration's request for voluntary efforts aimed at countering terrorist postings on social media.

Civil liberties groups warned the fallout from the San Bernardino dispute could extend beyond Apple.

"This is asking a company to build a digital defect, a design flaw, into their products," said Nuala O'Connor of the Center for Democracy and Technology, a Washington-based group that has criticized government surveillance. In a statement, the center warned that other companies could face similar orders in the future.

Others said a government victory could encourage regimes in China and other countries to make similar requests for access to smartphone data. Apple sells millions of iPhones in China, which has become the company's second-largest market.

"This case is going to affect everyone's privacy and security around the world," said Lee Tien, a staff attorney for the Electronic Frontier Foundation, a digital rights group in San Francisco.

The case turns on an 18th-century law that the government has invoked to require private assistance with law enforcement efforts. Apple has also challenged a federal search warrant based on the same law in a Brooklyn drug case. Apple has complied with previous orders invoking that law — the All Writs Act of 1789 — although it has argued the circumstances were different.

Apple has retained two prominent, free-speech lawyers to do battle with the government, according to court papers: Theodore Olson, who won the political-speech case Citizens United v. Federal Election Commission in 2010, and Theodore Boutrous, who frequently represents media organizations.

Government lawyers from the U.S. Justice Department have defended their request in court papers by citing various authorities, such as a 1977 U.S. Supreme Court ruling that upheld an order compelling a telephone company to provide assistance with setting up a device to record telephone numbers.

The high court said then that the All Writs Act authorized the order, and the scope of that ruling is expected to be a main target of Apple when it files a response in court by early next week.

But Apple will likely also broaden its challenge to include the First Amendment's guarantee of speech rights, according to lawyers who are not involved in the dispute but who are following it.

A spokesman for the U.S. Attorney's Office in Los Angeles declined to comment on the possible free-speech questions on Thursday.

A speech-rights argument from Apple, though, could be met with skepticism by the courts because computer code has become ubiquitous and underpins much of the U.S. economy.

"That is an argument of enormous breadth," said Stuart Benjamin, a Duke University law professor who writes about the First Amendment. He said Apple would need to show that the computer code conveyed a "substantive message."

In a case brought by a mathematician against U.S. export controls, a three-judge panel of the 9th U.S. Circuit Court of Appeals, which covers California, found in 1999 that the source code behind encryption software is protected speech. The opinion was later withdrawn so the full court could rehear the case, but that rehearing was canceled and the appeal declared moot after the government revised its export controls.

While experts said the latest case will likely end up in appeals court, both sides seemed to be framing the debate for a public audience as much as for a judge.

U.S. prosecutors were smart to pick the mass shooting as a test case for an encryption fight with tech companies, said Michael Froomkin, a University of Miami law professor. That is because the shooting had a large emotional impact, he said.

In addition, the iPhone in dispute was owned not by Farook but by his employer, a local government, which has consented to the search of the iPhone. The federal magistrate who issued the order, Sheri Pym, is also a former federal prosecutor.

"This is one of the worst set of facts possible for Apple. That's why the government picked this case," Froomkin said.

The federal request "is very strategic on their part, to be sure" said Robert Cattanach, a former Justice Department lawyer who handles cyber-security cases for the Dorsey & Whitney law firm. He said it appeared the government took pains to ask only for limited assistance in a mass-murder case that horrified the nation.

Apple's Cook, however, declared the demand would create what amounts to a "backdoor" in Apple's encryption software. "If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone's device to capture their data," he wrote in the open letter. Cook also pledged respect for law enforcement and outrage over the shootings.

Cook may have no choice but to mount a legal challenge, given his very public commitment to protecting customer data. Two fellows at the Brookings Institution criticized that stance Thursday, writing that Apple's "self-presentation as crusading on behalf of the privacy of its customers is largely self-congratulatory nonsense."

Cook has made privacy protection a part of Apple's marketing strategy, drawing a contrast with companies like Google and Facebook that sell advertising based on customers' online behavior.

Apple "can't be seen now as doing something that would make their products less safe," said Wendy Patrick, who lectures about business ethics at San Diego State University. "I think everyone saw this issue coming down the pike and Apple always knew it was going to push back when the moment came."

But in doing so, Apple risks alienating consumers who put a higher value on national security than privacy. A recent survey by the Pew Research Center found 82 percent of U.S. adults deemed government surveillance of suspected terrorists to be acceptable. 

Only 40 percent of the Pew respondents said it's acceptable for the government to monitor U.S. citizens, however. The survey also found nearly three-fourths of U.S. adults consider it "very important" to be in control over who can retrieve personal information about them.

Wire services