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.