Written Comments of Amicus Curiae, Before the Inter-american Commission on Human Rights, Apple Inc. v. United States of America

• Publication year: 2016
• Author: By Emilia Mikaelian

Written Comments of Amicus Curiae, Before the Inter-American Commission on Human Rights, Apple Inc. v. United States of America

By Emilia Mikaelian^*

Editor's Note: The following is a hypothetical amicus brief prepared for the Inter-American Commission on Human Rights. Drafted for the author's Human Rights at Home class at Loyola Law School, Los Angeles, the brief focuses on the recent legal dispute between Apple Inc. and the Federal Bureau of Investigation. It argues that a ruling compelling Apple to unlock an iPhone would have constituted a violation of the right to privacy under the jurisprudence of the Inter-American human rights system. The right to privacy in the context of digital technologies has not been extensively litigated before the Inter-American Commission on Human Rights, and this brief may be of value to practitioners who have related matters before the Commission.

I. INTRODUCTION

Amicus files this brief before the Inter-American Commission on Human Rights ("IACHR")¹ because the domestic courts of the United States chose to conscript Apple Inc. ("Apple") into creating software that would allow the government of the United States to bypass encryption protecting the personal information stored on locked iPhones. In the highly publicized legal battle involving the U.S. Department of Justice and Apple, many argued that Apple's refusal to assist the government with breaking the iPhone encryption was a "PR masterstroke," aimed at promoting its brand marketing strategy.² Whether a "PR masterstroke," Apple's decision to fight the government's pursuit of a backdoor to encrypted data has potential ramifications for the human rights of people all over the world. Under the IACHR's jurisprudence, the government's pursuit of the data on locked iPhones, with or without Apple's help, constitutes a violation of the right to privacy under the American Declaration on the Rights and Duties of Man ("American Declaration") and American Convention on Human Rights ("American Convention").³ First, as a threshold matter, an order permitting extraction of data from a locked iPhone, without the user consent, constitutes an interference with the right to privacy. Then, such interference violates Article V of the American Declaration as arbitrary and abusive. The order at issue is arbitrary and abusive because (1) it violates the principle of legality; (2) the government's objective in forcing Apple to weaken encryption is illegitimate; and (3) the order violates the principle of proportionality and necessity.

II. ARGUMENT

(a) The Right to Privacy in the Context of Digital Communications is Recognized in the Jurisprudence of the IACHR

Within the Inter-American human rights system, the American Declaration guarantees that every person has the right to: "the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life" (Article V); "the inviolability of his home" (Article IX); "the inviolability and transmission of his correspondence" (Article X).⁴ Similarly, the American Convention on Human Rights ("American Convention") indicates under Article 11 that (1) "Everyone has the right to have his honor respected and his dignity recognized; (2) No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation; (3) Everyone has the right to the protection of the law against such interference or attacks."⁵

In the context of rapidly evolving digital technologies, the right to privacy has been interpreted as encompassing a right to informational privacy.⁶ Specifically, the 2013 resolution 68/167 of the United Nations General Assembly reiterated that the privacy rights held by people offline should be protected online. It also cautioned against the dangers of "unlawful or arbitrary surveillance and/or interception of communications, as well as unlawful or arbitrary collection of personal data."⁷ Furthermore, the right to privacy in the digital age is deemed essential to protecting the right to freedom of opinion and expression.⁸ Indeed, compromising privacy of digital communications will have a chilling effect on individuals' freedom of expression; conversely, where communications are maintained secure, people are more willing to "seek, receive and impart information and ideas."⁹ Finally, it is encryption and anonymity that enable the "zone of privacy" that is so vital to effectuating the right to freedom of expression and opinion.¹⁰

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The Inter-American system of human rights recognizes the right to informational privacy, observing that "respect for online freedom of expression assumes that there is privacy for people's communications."¹¹ Escher et al. v. Brazil noted:

Today, the fluidity of information places the individual's right to privacy at greater risk owing to the new technological tools and their increased use. This progress ... does not mean that the individual should be placed in a situation of vulnerability when dealing with the State or other individuals.¹²

Although the privacy jurisprudence of the IACHR mostly focused on bodily and home searches, regarding the right to informational privacy, IACHR's Special Rapporteur for Freedom of Expression Catalina Botero Marino indicated that "in view of this close relationship between freedom of expression and privacy, States should avoid the implementation of any measure that restricts, in an arbitrary or abusive manner, the privacy of individuals."¹³ Under the Inter-American case law,¹⁴ a privacy-restricting measure will be arbitrary and abusive unless it complies with each and every of the following requirements: (a) it must be established by law; (b) it must have a legitimate purpose; and (c) it must be appropriate, necessary and proportionate.¹⁵

(b) The U.S. Government's Pursuit to Extract Data from Locked iPhones, without the User Consent, Constitutes an Interference with the Right to Privacy

As a threshold matter, the FBI's efforts to access information on locked iPhones is an interference with the right to privacy. As the IACHR explicated "the right to private life protects the confidentiality of all the data produced in that private space," prohibiting "the disclosure or circulation of information captured, without the consent of their owner, in that space of private protection reserved to the individual."¹⁶ Moreover, the storage, processing, use and transfer of personal digital data is viewed as within such "private space."¹⁷ Additionally, the Inter-American Court of Human Rights concluded that,¹⁸ individuals have a right to privacy in their telephone conversations, just like correspondence; hence, the State's interception of the conversations is an interference, subject to the analysis of potential arbitrariness and abusiveness.¹⁹ The court explained that even though the right to privacy under the American Convention does not specifically protect telephone conversations, they are a "form of communication included within the sphere of the protection of privacy, irrespective of their content."²⁰

In the instant case, the government's desire to access the information on locked iPhones is an interference with the right to privacy. First, iPhones facilitate the storage, processing, use and transfer of personal digital data; thus, such data is located within the "space of private protection." Moreover, because phone data is likely to include conversations, the government's accessing it is akin to the interception of the analogue telephone conversations, and thus will bear a similar impact on individuals' privacy. Finally, in addition to conversations, phone data might contain, among other things, a list of acquaintances, photographs, financial and medical information and patterns of commuting. Gaining access to such information is far more intrusive upon individuals' privacy interests than merely intercepting telephone conversations. Therefore, the FBI's pursuit to access the contents of locked iPhones, if successful, will become an interference with the right to privacy, triggering a further inquiry as to its abusiveness and arbitrariness.

(c) The Government's Interference with the Right to Privacy by Accessing Unlocked iPhones is Arbitrary and Abusive (i) The Court's Grant of the Government's Request Violates the Principle of Legality

For a state to curtail the right to privacy in a manner compatible with the American Declaration, the state, among other prerequisites, should satisfy the principle of legality.²¹ Specifically, the circumstances under which such restriction can occur must be "clearly established by law," and the restrictive norm itself "must be a law in the formal and substantial sense."²² Further, the Inter-American Court, drawing upon the jurisprudence of the European Court of Human Rights ("ECHR"), clarified that such norm must be "precise," indicating "the corresponding clear and detailed rules . such as the circumstances in which the measure can be adopted, the persons authorized to request it, to order it and to carry it out, and the procedure to be followed."²³ The ECHR explains that a law should be "formulated with sufficient precision to enable the citizen to regulate his conduct ... and foresee ... the consequences which a given action may entail."²⁴ The ECHR further elaborated that to qualify as a law, a norm "must indicate the scope of any ... [legal] discretion conferred on the competent authorities and the manner of it exercise with sufficient clarity . to give the individual adequate protection against arbitrary interference."²⁵ Finally, the OAS and UN Special Rapporteurs on the freedom of expression also advocated that for a restrictive measure to be legitimate, it must "establish limits with regard to the nature, scope and duration of these types of measures; the reasons for ordering them; the authorities with power to authorize, execute and monitor them; and the legal mechanisms by...