Our legal brief in support of Apple

Today, Microsoft joined with a number of other leading technology companies to file a legal brief in support of Apple, as the company fights an FBI request to unlock an encrypted iPhone that belonged to one of the shooters in the terrible act of terrorism that took place in December in San Bernardino.

While the companies that signed this brief are often fierce competitors, our unity with Amazon.com, Box, Cisco, Dropbox, Evernote, Facebook, Google, Mozilla, Nest Labs, Pinterest, Slack, Snapchat, WhatsApp and Yahoo, reflects our deep, shared concerns about the potential ramifications of this case for technology and for our customers. At stake are fundamental questions about privacy, safety, and the rule of law.

The principal argument we make in our joint brief is straightforward. The court order in support of the FBI request cites the All Writs Act, which was enacted in 1789, and last significantly amended in 1911. We believe the issues raised by the Apple case are too important to rely on a narrow statute from a different technological era to fill the Government’s perceived gap in current law. Instead we should look to Congress to strike the balance needed for 21st century technology.

The fact that we’re discussing the All Writs Act across the country is a telling indication of the urgent need to update antiquated rules that govern digital technology and privacy. If we are to protect personal privacy and keep people safe, 21st century technology must be governed by 21st century legislation. What’s needed are modern laws passed by our elected representatives in Congress, after a well-informed, transparent, and public debate.

To be clear, we have the deepest respect for the work that law enforcement does to investigate crimes and keep people safe. We believe that our company and our industry have not only a role but a responsibility to help keep the public safe, in accordance with the law. We take this responsibility seriously and I’ve previously highlighted examples of how Microsoft has acted quickly to respond to legal requests from law enforcement authorities – for example, when French police were pursuing fugitives following the terrible terrorist attacks in Paris last year.

But it is also clear that people won’t use technology that they don’t trust. Modern laws that protect people’s most personal data are essential to building trust in technology.

As I shared last week in my testimony before the U.S. House Judiciary Committee and this week in a keynote in San Francisco at the RSA Conference on technology and security, we believe strong encryption plays a vital role in building trust. Strong encryption helps safeguard sensitive personal information and proprietary corporate data from hackers, thieves, and criminals, and we shouldn’t create technology backdoors that would undermine these protections. That would put us all at greater risk.

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. By standing with Apple, we’re standing up for customers who depend on us to keep their most private information safe and secure.

About the Author

President and Chief Legal Officer

Brad Smith is Microsoft’s president and chief legal officer. Smith plays a key role in representing the company externally and in leading the company’s work on a number of critical issues including privacy, security, accessibility, environmental sustainability and digital inclusion, among others.