Mar 4, 2016 · 2 minutes

Everyone has an opinion on the FBI’s attempt to force apple to unlock the San Bernardino shooter’s iPhone. But not everyone cares strongly enough to file an amicus brief.

Former Adobe employee Michael Devine made headlines during the Apple, Google, Adode et al “Techtopus” class action suit. Devine refused to accept the initial settlement offer in the case, allowing the judge to push for a much higher amount ($415m instead of $324.5).

Now Devine is back as a thorn in Apple’s side, filing an amicus brief to the court of Judge Sheri Pym. Later this month, Pym will decide whether to accept Apple’s motion to vacate an order to assist the FBI in providing access to the cellphone used by  Syed Rizwan Farook during the December 2015 shooting.

Devine’s brief describes him as an “Internet technology expert, and concerned citizen.” In it, he asks the judge to reject Apple’s request, citing the company’s hypocrisy.

Apple’s position in the marketplace regarding customer privacy rights differs critically from the misleading position Apple is presenting to the Court in this matter. As such Apple’s Motion should be rejected as disingenuous and misleading.

It is profoundly misleading of Apple to argue in this Court in support of customer privacy while at the same time Apple’s own privacy policy allows Apple to use virtually all of the data its customers have on their Apple devices, and in the Apple “cloud”, including most of the kinds of the data the Government is seeking this case, for “any purpose”. From Apple’s Privacy Policy: “We may collect, use, transfer, and disclose non-personal information for any purpose.” [1] Note “non-personal information” includes all but the most specific kind of information, such as the details contained in a government identification card. “Non-personal information” includes, for example, outgoing and incoming call lists, text messages, photographs, GPS logs, browser logs, and virtually all the kinds of information the Government is seeking to recover in this case.

In other words, Devine argues that Apple’s terms and conditions already allow it an insane amount of access to user data for its own purposes, in violation if its users’ privacy. To suggest that the government shouldn’t have access to the same information in a criminal case is, he says, hypocritical.

Of course there’s an obvious counter argument to Devine’s position:  Apple’s terms and conditions concern only data that users share with Apple or put into the cloud. Information that exists only on the phone -- photos, texts and other information not backed up elsewhere -- is not accessible to Apple or, as this case shows, to anyone else.

I don’t own a smartphone but if I did, I’d understand that Apple’s terms did not give them the ability to access data that exists solely on my phone, behind a password wall. Indeed, the fact that the FBI is trying to compel Apple to build a hack to allow them to access Farook’s phone directly supports that interpretation of Apple’s terms.

Still, the amicus brief, embedded below, makes clear that at least some Techtopus plaintiffs are not stopping with fighting wage theft. They’re determined to keep jabbing at Apple until the company’s public statements match their private behavior.