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Amazon, Facebook, Google, Microsoft Back Apple in Court Fight Over Encryption

The FBI is seeking to "commandeer" Apple's engineers to undermine the security features of its own products, say the tech giants.

Composite image by Re/code

Some of Apple’s fiercest technology rivals have sided with the Cupertino company in its court fight over encryption.

A Who’s Who of the tech sector — 15 companies that include Amazon, Cisco, Facebook, Google and Microsoft — filed a court brief today, speaking out in one voice in a case they describe as of singular importance to the industry.

In the filing, the companies say they share the public’s outrage at the attack that took place in San Bernardino and feel no sympathy for terrorists. Indeed, they collectively respond to tens of thousands of government requests for data to assist in criminal investigations.

But the technology giants say they draw the line at the government’s request in the San Bernardino case, in which law enforcement seeks to “commandeer” Apple’s engineers to undermine the security features of its own products. The companies call on the federal judge to throw out the order that would require Apple to assist investigators in hacking the iPhone used by one of the shooters in the Dec. 2 attack.

“The government is not just asking companies to do what they do in the normal course of business,” the companies said in their joint filing. “The government is asking companies to change how they do business.”

The companies echo Apple’s arguments over the government’s overreach in using the All Writs Act — which was adopted some 50 years before the invention of the telegraph and nearly a century before Alexander Graham Bell made the first phone call — to force the technology company to circumvent the security features that protect customers from hackers and criminals.

Law enforcement used the All Writs Act to compel New York Telephone Co. to install a pen register, a mechanical device that records the numbers dialed in the phone. But that was in 1977.

“This request here is far different,” the companies write. “This court should … exercise caution in how it applies a decision from an era in which concepts like ‘cell phones’ and ‘the Internet’ were unheard of.”

Congress has addressed surveillance techniques over time — through the Wiretap Act, the Foreign Intelligence Surveillance Act, the USA Freedom Act and, most recently, the Communications Assistance for Law Enforcement Act, which requires telecommunications carriers to design their equipment in a way that ensures law enforcement can conduct court-ordered wiretaps.

But Congress stopped short of granting law enforcement the authority to do what it’s seeking now in court — to order a technology company to create a technological backdoor to encrypted devices, the companies argue.

“Make no mistake: If the government prevails in this case, it will seek many such decisions,” the companies argue in their legal filing — noting that FBI Director James Comey told the House Judiciary Committee this week that he sees the San Bernardino case as “potentially precedential.”

The companies say what the the government is demanding of Apple goes well beyond providing technical assistance, but “the ability to compel technology companies to modify their products, on spec, for the FBI in ways that are contrary to their core values.”

“There’s a big difference between giving the government information we have and being forced to redesign our products to allow access that no one currently has,” said Snapchat Chief Executive Evan Spiegel. “If one judge can force Apple to create a back door into its phone, another judge could make us breach our data protections too.”

The government has taken a contradictory stances on encryption — with the White House calling for enhanced cyber security to combat the theft of trade secrets and the Federal Trade Commission filing suit against companies that fail to adequately protect their customers’ data, the companies write in their filing.

“The government reconciles its conflicting positions by arguing that security is all well and good, just so long as it does not interfere with the execution of a lawful warrant,” the companies write. “But once a company builds a security-defeating tool, it cannot guarantee that it will be used by law enforcement only.”

What the government is asking of Apple — to use its own personnel to defeat its own product’s security and assume all the risk — goes too far, they argue.

“We’ve reached a critical moment in which a new generation of mobile and cloud-based technologies have far outrun the laws that protect our safety and preserve our timeless and fundamental rights,” said Microsoft President Brad Smith. “By standing with Apple, we’re standing up for customers who depend on us to keep their most private information safe and secure.”

The companies joining in the brief are Amazon, Box, Cisco Systems, Dropbox, Evernote, Facebook, Google, Microsoft, Mozilla, Nest, Pinterest, Slack, Snapchat, WhatsApp and Yahoo.

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