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Microsoft Announces Support for Apple in Encryption Controversy

Microsoft founder Bill Gates offered some muddled support for the government in the FBI’s standoff against Apple over data encryption, while his company has been a “tepid” supporter of Apple, in the estimation of The Verge… until today, when Microsoft announced it “wholeheartedly” supports the rival tech giant and will file a “friend of the court” brief on its behalf.

Microsoft’s chief legal officer and president since last fall, Brad Smith, made the announcement before the House Judiciary Committee on Thursday.

GeekWire notes the overall purpose of Smith’s testimony was to encourage Congress, and governments around the world, to modernize and standardize law enforcement access to electronic data.  Of particular concern to Microsoft is a case in which an American search warrant commands them to turn over data pertinent to a drug-trafficking investigation, which happens to be stored on computers in Ireland.

Smith complained that by having conflicting rules and subjecting international tech companies to overlapping jurisdictions, governments are “putting technology companies in the untenable position of choosing which of two conflicting laws they must obey – and which of two laws they must violate.”

He made a point similar to something Apple has been saying about its unbreakable data encryption: law enforcement demands are “leading to increasingly strong reactions that are undermining trust in American technology around the world.”

The international user base is likely to become even more vexed now that “safe harbor” laws allowing no-hassle data transfer between Europe and the U.S. have been struck down by the European Union.

As for the FBI vs. Apple case, The Verge reports Smith objecting to the FBI’s citation of the All Writs Act to compel Apple to create a special version of the iPhone operating system for San Bernardino jihadi Syed Farook’s device.  Smith did this by pulling out a 1912-vintage adding machine and asserting that courts should not “seek to resolve issues of 21st-century technology with a law that was written in the era of the adding machine.”

The prop didn’t seem to go over terribly well, but there has been a considerable volume of opinion written against stretching the All Writs Act (which actually dates back much further than Smith’s antique) to commandeer Apple’s programming resources.  The UK Guardian posted a good review of these arguments on Wednesday, with the suggestion that Congress should resolve the issue through new legislation.

USA Today reports that the Electronic Frontier Foundation, Amnesty International, and ACLU will also file amicus briefs supporting Apple.  Both groups described the government’s demand for back-door access to Farook’s encrypted iPhone as a dangerous precedent that could be easily abused — not just by the U.S. government, in the ACLU’s opinion, but by “every repressive regime in the world.”

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