Law Enforcement Groups File Amicus Brief In Favor Of FBI… But Which Undermines DOJ's Claim That This Is Just About One Phone
from the about-that... dept
So, we already wrote about the nutty amicus filing in support of the FBI by San Bernardino’s District Attorney, as well as the tons of amicus briefs in support of Apple. However, there are two more amicus briefs that were filed in support of the Justice Department, and we didn’t want to leave those out of our coverage either. The main one is a brief from a ton of law enforcement agencies, namely the Federal Law Enforcement Officers Association, the Association of Prosecuting Attorneys, and the National Sheriff’s Association.
The argument is not a surprising one. It’s basically “but we really, really, really want to see what’s on these phones” combined with “this may inspire others not to obey us.”
Amici believe that the position Apple has taken is a dangerous one. First, Apple’s refusal to provide assistance has far-reaching public safety ramifications by making it difficult, and in some cases impossible, for law enforcement to fulfill its obligation to investigate crimes, protect the public by bringing criminals to justice, and enforce the law. Second, if Apple were to prevail, the public at large may itself think twice about cooperating with law enforcement when called upon to do so.
Of course both of these are hogwash. First of all, Apple has provided a ton of assistance. But providing some assistance doesn’t mean it should be compelled to provide all possible assistance. In fact, this claim ignores the very heart of this case, which is just how far must Apple go, and can a company be compelled to go way beyond what any company has been compelled to do in the past. But this filing misleads the court and pretends it’s simply about whether or not Apple should provide any assistance. Similarly, the argument that this kind of info is needed to “enforce the law” is similarly ridiculous. As we’ve noted, law enforcement never gets “all of the information.” It never knows what information has been destroyed, or is hidden and not found, or is just in people’s brains. The idea that they need every possible scrap of information has simply never been true, and in fact, our Constitution is designed on the principle that, no, law enforcement doesn’t always have the right to access any and all information it wants. That’s on purpose.
Separately, this amicus brief — despite officially being in support of the Justice Department and the FBI may serve to undermine their case. After all, a key part of the DOJ’s argument is that this case is just about this one phone. However, as we’ve discussed, tons of law enforcement folks are salivating over using this ruling as a precedent elsewhere. And this brief makes that quite clear, which might help the judge realize that the Justice Department is being misleading in arguing otherwise.
The other amicus brief in support of the DOJ is one filed on behalf of six individuals who are mostly family members of people who were killed in the San Bernardino attack (five of them, with the other person being the husband of a woman who witnessed the attack, but was not shot). This filing was also not unexpected given that, as we reported earlier, the DOJ reached out to a lawyer to file this amicus brief before even asking the judge for the order. For whatever reason, the actual brief does not appear on PACER, just the application for the amicus brief (it says the brief is attached, but as of my writing this, the full brief does not appear in PACER). I can certainly understand why these individuals would want to support the DOJ here (though, as noted in our earlier posts, at least three other family members have supported Apple’s position). But I’m not convinced that their views have any legal impact on the case, just an emotional one.