Apple Fans File With Court

Say FBI order should be vacated
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Backers of Apple's battle with the FBI over encryption were filing their amicus briefs in a California district court Thursday (March 3).

The Media Institute, the First Amendment think tank backed by various media companies, and AT&T both weighed in on the case.

Apple is under a court order to comply with an FBI request that it help law enforcement circumvent the self-destruct and delay features on a phone used by one of the San Bernardino shooters.

The FBI wants to be able to search the phone for information but Apple says being forced to create a software key to one phone means it could be used for others and threatens its users' privacy.

The institute says the FBI is trying to compel speech in violation of the First Amendment.

"By forcing Apple to create speech that it would otherwise not make and with which it disagrees, the FBI’s order falls squarely within the jurisprudence of compelled speech and requires the FBI to meet the heavy burden of strict scrutiny," it told the court.

"Moreover, the FBI’s order undermines the interests of the news media in protecting their autonomy in government investigations and in maintaining confidential communications," the institute said. "The authority the FBI seeks under the All Writs Act would place the independence of the press at risk."

The brief also says the court would not have to reach the First Amendment issue if it adopted a "proper interpretation" of the All Writs Act, which means denying the FCC order before having to reach the tougher question of constitutionality.

The brief was penned by Kurt Wimmer, who chairs the privacy and data security practice of Covington & Burling, where he is a partner.

AT&T also called on the court to vacate its order that Apple take what AT&T called "fairly extraordinary" measures.

In a blog on its filing, AT&T senior executive VP and general counsel David McAtee said Congress, not the courts, should be the place to establish a "clear, uniform" legal framework for balancing privacy and safety in a digital world.

"Like all Americans, we were deeply saddened by the tragic events of San Bernardino.  Without question, the government should use every lawful means to investigate those crimes, and that includes compelling Apple’s cooperation to the full extent permitted by law," he said. "In this case, however, the government seeks more than what can be supported under the law as it is written today.  The solution is for Congress to pass new legislation that provides real clarity for citizens and companies alike."

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