The federal government is once again trying to force Apple to weaken the security of millions of iPhones. On Wednesday, President Trump issued a call from Davos, Switzerland for Apple to assist law enforcement in unlocking iPhones. Last week, Trump made the same demand of Apple, tweeting that the company should unlock cell phones as a quid pro quo for any benefits it enjoys as a result of favorable U.S. trade deals.

Buying off private parties to do police bidding is neither good trade policy nor good law enforcement. Regardless, President Trump’s attorney general, William Barr, has made this fight one of his signature issues. In July and October of last year, he gave speeches that pushed for tech companies to design their products to ensure law enforcement access to our secured communications. This month he initiated a public spat with Apple, criticizing the company for failing to unlock the Pensacola shooter’s iPhone.

But there is considerable global demand that communications software provide strong encryption to protect users — and for good reason. Encryption is our strongest defense against abusive governments, hackers, and organized crime. Encryption also provides anonymity to dissidents, whistleblowers, and human-rights defenders so they can freely express themselves, organize, and expose governmental abuse without fear of retribution.

Requiring technology companies to build a government backdoor into our encrypted communications would break that crucial defense, empowering repressive governments like China and Iran to obtain and abuse private communications.

This is not just about the Pensacola investigation, or any one criminal case. Satisfying the government’s demand would undermine the security of millions of other iPhone users, and make them all more susceptible to government abuses, identity thieves, credit card fraud, and other criminal activity. If technology companies build security weaknesses into their products, unwanted attackers will use those weaknesses for crime and abuse.

This is why Apple went all in resisting the FBI’s effort four years ago to unlock an iPhone (and the ACLU supported Apple), why Google rapidly deployed secure encryption across all its data streams, and why Facebook is making end-to-end encryption the default on WhatsApp, Messenger, and Instagram.

But law enforcement and intelligence agencies have not given up. Attorney General Barr’s public relations campaign implies that the Department of Justice will only seek information with a lawfully-issued search warrant. At the same time, the DOJ has been telling federal courts across the country that it does not need a search warrant to obtain our emails or other private data. Nor are all of the Department’s search warrants legally justified. The FBI has been spying on Black Americans, including arresting and detaining one man for his First Amendment-protected Facebook posts.

Encryption providers have the law on their side. The Fourth Amendment generally requires a search warrant before police can seize and read our private correspondence. A warrant gives police permission to search, but it doesn’t entitle them to plaintext information that doesn’t exist. Moreover, there is no law in the U.S. requiring individuals to ensure our private communications are available to law enforcement.

Technology providers also have a number of government agencies on their side. The Commerce and State Departments have argued internally that mandating encryption “backdoors” will have negative economic, security, and diplomatic consequences. The Federal Trade Commission, charged with protecting consumer privacy, pushes encryption as a means to secure consumer data from theft.

Former government officials are also pushing back on DOJ’s claims. Jim Baker, who was the FBI general counsel responsible for the agency’s litigation against Apple, recently wrote that it was time to accept that end-to-end encryption is here to stay, citing in part the fact that “relevant cybersecurity risks to society have grown disproportionately over the years when compared with other risks.” The former director of the National Security Agency and the Central Intelligence Agency, Michael Hayden, argues that encryption backdoors will empower authoritarian governments without helping law enforcement, as criminals will simply switch to services designed overseas.

Nevertheless, the Department of Justice has doubled down — often in secret and under sealed legal proceedings — on its efforts to compel device manufacturers and social networking companies to undermine the security promises they make to us. For instance, in 2018, Reuters reported on a failed FBI attempt to force Facebook to wiretap encrypted voice conversations on Facebook Messenger. The public to date doesn’t know exactly what the FBI demanded that Facebook change about Messenger, how that change might affect the security and privacy of other Messenger users, why the court denied the request, how many other times the FBI has made such a request, or how many other companies have received one. We also don’t know who has complied with the government’s requests in the past, or under what legal interpretation. The ACLU and EFF have sued to unseal the court opinion, and will be in court on April 3rd to argue that the law should be public in a democracy.

The government’s attempts to force developers to build insecure products, or to undermine existing security measures, as it is attempting to do with Apple right now, are dangerous and unlawful. Law enforcement does not and should not have the authority to commandeer innocent third parties into becoming its undercover agents, spies, or hackers. The Department of Justice and members of Congress should abandon attempts to undermine our security, and instead focus on policies that encourage widespread adoption of strong encryption. We should be leading the global community by example, making it clear that the United States supports and encourages secure infrastructure for our society, and that we consider excessive surveillance powers held by anyone a problem — not a solution.

Jennifer Stisa Granick, Surveillance and Cybersecurity Counsel, ACLU Speech, Privacy, and Technology Project

The right to vote cannot depend on how much money you have. That’s what a federal court ruled in October, when it blocked Florida’s attempt to force returning citizens — people with felony convictions who have completed incarceration, probation, and parole — to pay for their basic right to vote. Florida voters have made clear that they want returning citizens to rejoin the franchise, but as we approach the 2020 primaries, politicians are scrambling to stifle the voices of these newly eligible voters. We’re going back to court to defend their rights at the Eleventh Circuit Court of Appeals next week.

In 2018, Floridians resoundingly voted to pass Amendment 4, an amendment to the state Constitution ending permanent disenfranchisement of people with felony convictions. The law affected more than a million returning citizens. Amendment 4 is historic not only for Florida but the whole nation — it’s the single largest expansion of voting rights in the United States since the 26th Amendment lowered the voting age to 18. And it had a profound racial justice impact. Before Amendment 4’s passage, more than 20 percent of the Black voting-age population in Florida was disenfranchised due to a felony conviction.

“The passage of Amendment 4 allowed me to register to vote. That was one of the happiest days of my life. I joined the litigation to fight for my right to vote and to have a voice for the 1.4 million Floridians that are also affected by this law.” —Betty Riddle, plaintiff

That progress is now on the line. In June, Governor Ron DeSantis put hundreds of thousands of newly eligible voters in danger of being permanently disenfranchised yet again when he signed Senate Bill 7066. Under SB7066, returning citizens must pay the exorbitant court costs, fines, and fees levied against them at the time of their conviction, or lose their right to vote. This is clearly unconstitutional — Florida cannot restore voting rights to people wealthy enough to pay off their fines and fees but deny them for people unable to pay those obligations.

The ink hadn’t yet dried on SB7066 when we filed our lawsuit challenging it with partners at the ACLU of Florida, the Brennan Center, and the NAACP Legal Defense Fund. When we won a preliminary injunction in October, a federal judge declared that “the State of Florida … cannot deny restoration of a [returning citizen’s] right to vote solely because the [returning citizen] does not have the financial resources necessary to pay” their legal financial obligations. On the same day of our victory, Governor DeSantis signaled his agreement with the decision; his spokesperson told the media that the Governor “recogniz[es] the need to provide an avenue for individuals to pay back their debts as a result of true financial hardship.”

The governor’s actions, however, tell an entirely different story. Since our preliminary injunction victory, the state has refused to provide any guidance to voters or local supervisors of elections, or develop a system for people unable to pay their fines and fees. After 40 days of dragging their feet, DeSantis and the Florida Department of State filed an appeal in the Eleventh Circuit.

Governor DeSantis is trying to run out the clock before the March 2020 primary, and is deliberately sowing confusion to dissuade eligible voters from registering and going to the polls. Florida is leaving its citizens on their own to figure out what fines and fees they owe and whether they are eligible to vote. With radio silence from the state, it’s likely that many will refrain from voting out of fear of prosecution. Chilling the participation of these new voters is the whole point of these efforts. 

“I’ve never known a life where I didn’t have barriers and voting is the first step to being able to remove those barriers.” —Marq Mitchell, plaintiff

We will continue fighting in federal court for our clients and the hundreds of thousands of Floridians' voting rights that SB7066 seeks to unconstitutionally and permanently eliminate. While the Florida Supreme Court recently issued an advisory opinion determining that fines and fees are part of a “sentence” under Amendment 4, this does nothing to change the preliminary injunction issued in our case or what the Constitution requires. It is instead Florida’s Legislature that can fix SB7066 by removing the fines and fees requirement for people who can’t afford to pay. 

Plenty of states have already set positive examples on restoring the right to vote. Many states have loosened disenfranchisement laws in recent years, with some dropping them altogether. Florida used to be one of the strictest states on felony disenfranchisement, but by passing Amendment 4 in the first place, Floridians demonstrated their commitment to ensuring that all citizens have an opportunity to vote. Change is possible and the people — not the politicians — are the ones leading the charge. 

Voting is a basic right of citizenship. Losing this right is one of the many unjust consequences of a felony conviction, hindering returning citizens’ ability to fully participate in our democracy after they complete their sentences. The right to vote should never come with a price tag — and Florida cannot violate constitutional protections in order to keep people from the polls. We are confident the Eleventh Circuit will agree.

Orion Danjuma, Staff Attorney, ACLU Racial Justice Program,
Jonathan Topaz, Skadden Fellow, ACLU Voting Rights Project,
& Leila Rafei, Content Strategist, ACLU

Today we commemorate the 47^th anniversary of Roe v. Wade, the landmark Supreme Court case that recognized a constitutional right to abortion. In the nearly five decades since, the decision has weathered numerous storms and faced plenty of erosion, leaving too many without meaningful access to abortion care. But 2020 could be its most consequential year yet.

This spring, the Supreme Court will hear arguments in June Medical Services v. Gee and could uphold state abortion restrictions identical to ones it struck down only four years ago, thereby allowing states to continue shutting down abortion clinics with no medical justification. Unsatisfied, 207 abortion opponents in Congress have asked the Court to overturn Roe entirely and pave the way for states to ban abortion outright.

But while this high-stakes showdown plays out at the Supreme Court, we cannot take our eyes off of the states. In 2019, seven states throughout the South and Midwest tried to ban abortion (all have been blocked thus far) while seven other states passed eight affirmative measures to protect and expand access to abortion. This year will include new threats, as well as new opportunities to build on recent victories.

The attacks on abortion are mounting quickly. Already in 2020, bills that would ban abortion from the earliest days of pregnancy — like those passed in Georgia and Alabama last year — have been introduced in 13 states, with more likely to be filed in the coming days and weeks. Not all will advance, but there is a genuine risk that at least five more abortion bans could be enacted this year.

Less aggressive but equally harmful and extreme measures are also being considered: a Florida bill that would force young people to obtain parental consent for an abortion, which would increase risks to vulnerable youth; bans on the standard of care for abortion after 14 weeks in Michigan and Nebraska; and an Ohio measure that promotes the dangerous and unproven theory that an abortion with pills can be “reversed.” Additionally, abortion opponents are taking steps to eliminate abortion protections or pass new restrictions via ballot measures in Colorado, Kansas, Kentucky, Louisiana, and elsewhere. 

But it’s not all bad news. Many states are fighting to protect and expand reproductive rights. Inspired by the bold actions of Illinois, Maine, New York, and others, more states are gearing up to ensure access to abortion no matter what happens at the Supreme Court.

Massachusetts is working to pass the ROE Act, which would, among other things, improve youth access to abortion and ensure coverage for abortion regardless of income or immigration status. In the wake of an historic election in Virginia, legislators are lining up to show their support with a bevy of proactive bills. And New Jersey Gov. Phil Murphy recently called for efforts to codify reproductive rights in state law.

The reality is, however, that we will never break free from the relentless cycle of harmful state laws and court battles without federal action by Congress — which is why we are joining calls for Congress to pass the Women’s Health Protection Act. Already supported by more than 200 co-sponsors in the House and 42 in the Senate, WHPA would prohibit states from shutting down abortion clinics and banning abortion outright. A nationwide safeguard against the breathtaking scope of medically-unnecessary abortion restrictions states have passed to delay and obstruct access to care would be a critical step toward making the right to abortion a reality for all people, no matter where they live. 

But it’s not enough to keep clinic doors open. We must also ensure that people can afford to access the care they need by working to eliminate coverage bans like the Hyde Amendment that for far too long have pushed care out of reach for low-income people.

Recent polling shows that a majority of voters support coverage for abortion for people enrolled in Medicaid — and support is steadily building in Congress for the Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act, a bill to end restrictions on abortion coverage in government insurance programs and stop political interference with private insurance coverage of abortion. Presidential candidates have likewise committed to ending the Hyde Amendment in response to sustained pressure from dedicated activists, including ACLU volunteers working through our Rights For All campaign.

The Roe anniversary is an important milestone, but we can’t ignore the fact that continued attacks on abortion rights still leave countless people without adequate protections. Whatever twists and turns we may encounter in the coming year, the ACLU will keep fighting to fulfill Roe’s promise.

Jessica Arons, Senior Advocacy and Policy Counsel for Reproductive Freedom, ACLU