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.