Apple’s legal defense against an FBI order to help it unlock an iPhone belonging to one of the San Bernardino terrorists has focused on the “burden” it would place on the company and its customers and the company’s First Amendment rights. But the FBI’s attempt to backdoor its way into the encrypted phone might also be a violation of international human rights treaties, according to a new legal brief filed by the digital rights group Access Now.
The amicus brief, filed by Access Now and the Wickr Foundation (the nonprofit arm of Wickr, which makes an encrypted messaging app) notes that “international law forbids a State from arbitrarily or unlawfully interfering with privacy,” and lists several cases where digital communications were obtained by authoritarian governments or dangerous organizations (such as drug cartels), who were later killed, tortured, or punished.
“It is critical to protect the ability to develop and use encryption coequally with the human rights it fosters,” Access Now wrote in the brief. Amicus briefs are legal arguments officially filed in court proceedings by organizations and companies that are not involved in but have an interest in the case at hand. Judges often consider them when making a final ruling.
"I believe the implications for freedom of expression are potentially quite serious"
The idea that encryption is necessary to protect the basic human right to speech is a relatively new idea: In May, David Kaye, an official in the United Nations’ Human Rights Council, published a report claiming that “encryption and anonymity, and the security concepts behind them, provide the privacy and security necessary for the exercise of the right to freedom of opinion and expression in the digital age.
“Such security may be essential for the exercise of other rights, including economic rights, privacy, due process, freedom of peaceful assembly and association, and the right to life and bodily integrity,” Kaye wrote. Access Now and Wickr cited Kaye’s report heavily in their brief.
Kaye did not file an official amicus brief with the court, but he did revisit his May paper in a letter supporting Apple that was sent to Magistrate Judge Sheri Pym, who is presiding over the case. Kaye suggested that the FBI’s order would be a violation of the International Covenant on Civil and Political Rights, a treaty the US ratified in 1992. The treaty notes that “everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression.”
“To the extent that the [FBI’s] order leads to vulnerabilities in secure communications [and] compromises in the ability of individuals worldwide to fight and evade the consequences of censorship,” Kaye wrote to Pym, “I believe the implications for freedom of expression are potentially quite serious.”
"If the order goes through, I wouldn’t be surprised at all if some international human rights bodies responded"
Last week, I spoke to Access Now’s Drew Mitnick, who told me that Apple’s Constitutional and All Writs Act arguments (more on those arguments here) are persuasive, but said he hoped the court would take into account the international threat to human rights that an iPhone backdoor would represent.
That authoritarian governments would seek to use an iPhone encryption vulnerability is not really up for debate in the security and civil liberties worlds—most people are taking such a use as a given, and Apple has repeatedly said that it expects China and Russia would seek a similar capability if the FBI sets this precedent. What’s less clear, however, is how persuasive the human rights argument is, legally speaking.
“These kinds of arguments are informative in the sense that the US has ratified international human rights treaties and, in theory, we’re supposed to comply with them,” Mitnick told me. “It should be a persuasive argument and, if the order goes through, I wouldn’t be surprised at all if some international human rights bodies responded.”