"Every tool that protects our privacy and liberties against oppression, tyranny, madmen and worse can often be used to take those very precious rights from us," Cuban wrote. "We must stand up for our rights to free speech and liberty."
The government is pinning its order on the All Writs Act of 1789, which Cuban calls a "catch all for anything for which there is no law." He suggests that a better way to deal with the situation at hand is to pass new legislation to deal with the issue.
"The issue is that as often happens, technology speeds past our ability to adapt or create new laws that match the onslaught of daily technological change," said Cuban.
He added that he's normally in favor of fewer laws, but in this case, new legislation is essential to prevent the "slippery slope of privacy violations hidden behind the All Writs Act."
A federal magistrate on Tuesday ordered Apple to assist in the San Bernardino terror attack investigation by designing a new operating system to disable the feature that erases all contents after 10 failed passcode attempts. This would allow the FBI to unlock the iPhone 5C used by Syed Rizwan Farook, who with his wife killed 14 people on Dec. 2.
The phone is owned by Farook's former employer, the San Bernardino County Department of Public Health. The department has supported federal investigators' requests to search the contents of the device.
On Wednesday, Cook said Apple would oppose the order. "The implications of the government's demands are chilling," he said in a note to customers. "If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone's device to capture their data."
In his blog post, Cuban drew a link between encryption and the protection of free speech.
"Speech can only be free when it is protected," he said. "We have a right to protect our speech from those, domestic or otherwise, who may watch or monitor us. Which is why encryption is vitally important to all of us."
He added that encryption is incredibly easy and compared it to wearing a seatbelt in your car.
Cuban suggested new legislation that compels a company to remove security or encryption from mobile devices in only four specific circumstances:
- An event, with casualties, that has been declared an act of terrorism
- There is reason to believe that the smartphone was possessed by a participant in the act of terrorism.
- The smartphone must have been on premise during the event.
- The terrorist who was in possession of the smartphone or tablet must be deceased.
The goal of such legislation would be to remove the All Writs Act from this situation and limit the government's ability to pressure companies to decrypt their own security software.
Cuban acknowledged the difficulty of balancing the need to protect privacy while drafting a law that would potentially reduce those protections.