There’s only one sure winner in this fight.
The FBI hearing over Apple encryption is now postponed, but one of the arguments in that case – as they Electronic Frontier Foundation advanced it – was that code is speech, and should be free speech:
The Supreme Court has rejected requirements that people put “Live Free or Die” on their license plates or sign loyalty oaths, and it has said that the government cannot compel a private parade to include views that organizers disagree with. That the signature and code in the Apple case are implemented via technology and computer languages rather than English makes no difference. For nearly 20 years in cases pioneered by EFF, the courts have recognized that writing computer code is protected by the First Amendment. In a brief from EFF and leading technology experts, we have told the court considering Apple’s case that forcing the company to write and sign a new operating system for the government is akin to the FBI dictating a letter endorsing backdoors and forcing Apple to sign its forgery-proof name at the bottom.
Here’s that brief:
Over at TechCruch, Greg Kumparak and Matthew Panzarino characterize – accurately – the reply brief from Apple in its encryption battle with the FBI as
cold and precise. Apple got some time to consider the best way to respond and went with dissecting the FBI’s technical arguments in a series of precise testimonies by its experts.
Where the FBI filing last week relied on invective, Apple’s this week relies on poking holes in critical sections of the FBI’s technical narrative.
Here’s an embed of the brief, well worth reading in full:
From the New York Times, on Apple’s probably response to the FBI’s current attempt to gain access to an iPhone’s data:
WASHINGTON — Apple engineers have begun developing new security measures that would make it impossible for the government to break into a locked iPhone using methods similar to those now at the center of a court fight in California, according to people close to the company and security experts.
If Apple succeeds in upgrading its security — and experts say it almost surely will — the company will create a significant technical challenge for law enforcement agencies, even if the Obama administration wins its fight over access to data stored on an iPhone used by one of the killers in last year’s San Bernardino, Calif., rampage. If the Federal Bureau of Investigation wanted to get into a phone in the future, it would need a new way to do so. That would most likely prompt a new cycle of court fights and, yet again, more technical fixes by Apple.
Over at Ars Technica, David Kravets writes that in addition to a First Amendment defense against the federal government’s efforts to gain access to the data on an encrypted iPhone, the tech company will use a Fifth Amendment defense. See, Forget the 1st Amendment, Apple to plead the 5th in iPhone crypto flap.
Apple will also argue in its legal papers to be filed by Friday that computer code and its cryptographic autograph are protected speech under the First Amendment and that the government cannot compel speech by Apple. Bloomberg reported:
Apple is expected to argue in federal court that code should be protected as speech. The company is fighting a government order requiring it to write software to help the Federal Bureau of Investigation unlock an iPhone used by one of the San Bernardino shooters. Apple views that as a violation of its philosophy. Just as the government can’t make a journalist write a story on its behalf, according to this view, it can’t force Apple to write an operating system with weaker security.
Here’s a sketch of the Fifth Amendment claim:
….the Fifth Amendment goes beyond the well-known right against compelled self-incrimination. The relevant part for the Apple analysis is: “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The idea here is that the government is conscripting Apple to build something that it doesn’t want to do. That allegedly is a breach of its “substantive due process.” The government is “conscripting a company’s employees to become agents for the government,” as one source familiar with Apple’s legal strategy told Ars. The doctrine of substantive due process, according to Cornell University School of Law, holds “that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest.”
(One small nitpick, about my alma mater’s name: it’s the Cornell Law School (no one calls it anything else).
Kravets writes that the ACLU “is to file a friend-of-the-court brief in the dispute that cites the Fifth Amendment in Apple’s defense. “If this legal argument sounds novel, it’s because the government’s claim is unprecedented,” [ACLU staff attorney Alex] Abdo said in a telephone interview.”
The next court hearing is 3.22.16.