Apple likely to invoke First Amendment free-speech rights in fight against U.S. government backdoor demands

“Apple will likely seek to invoke the United States’ protections of free speech as one of its key legal arguments in trying to block an order to help unlock the encrypted iPhone of one of the San Bernardino shooters, lawyers with expertise in the subject said this week,” David Ingram, Alison Frankel, and Dan Levine report for Reuters. “The tech giant and the Obama administration are on track for a major collision over computer security and encryption after a federal magistrate judge in Los Angeles handed down an order on Tuesday requiring Apple to provide specific software and technical assistance to investigators.”

“Apple has retained two prominent, free-speech lawyers to do battle with the government, according to court papers: Theodore Olson, who won the political-speech case Citizens United v. Federal Election Commission in 2010, and Theodore Boutrous, who frequently represents media organizations,” Ingram, Frankel, and Levine report. “Government lawyers from the U.S. Justice Department have defended their request in court papers by citing various authorities, such as a 1977 U.S. Supreme Court ruling that upheld an order compelling a telephone company to provide assistance with setting up a device to record telephone numbers. The high court said then that the All Writs Act, a law from 1789, authorized the order, and the scope of that ruling is expected to be a main target of Apple when it files a response in court by early next week.”

“But Apple will likely also broaden its challenge to include the First Amendment’s guarantee of speech rights, according to lawyers who are not involved in the dispute but who are following it,” Ingram, Frankel, and Levine report. “Apple could argue that being required to create and provide specific computer code amounts to unlawful compelled speech, said Riana Pfefferkorn, a cryptography fellow at Stanford University’s Center for Internet and Society. The order against Apple is novel because it compels the company to create a new forensic tool to use, not just turn over information in Apple’s possession, Pfefferkorn said. ‘I think there is a significant First Amendment concern,'” she said.”

Read more in the full article here.

MacDailyNews Take: Maybe, in the end, Roberts will just proclaim it a “tax.”

In that case, it would really be the end, as in: of the country as we know it.

Don’t laugh: The leap from forcing U.S. citizens to buy something they don’t want to buy or get fined to forcing U.S. companies’ employees to write code they don’t want to write or get fined or worse* really isn’t all that great.

*import/export blockades, executives jailed, etc.

SEE ALSO:
Donald Trump calls for Apple boycott over San Bernardino terrorist iPhone encryption – February 19, 2016
Secret memo details U.S. government’s broader strategy to crack phones – February 19, 2016
DOJ escalates war against Apple, files new motion to compel company to break into iPhone – February 19, 2016
Libertarian U.S. presidential candidate John McAfee offers to unlock terrorist’s iPhone for FBI – February 19, 2016
Apple is still fighting Big Brother – February 19, 2016
Apple co-founder Woz: Steve Jobs would have fought this U.S. government overreach, too – February 19, 2016
Mother who lost son in San Bernardino terrorist attack sides with Apple against U.S. government backdoor demands – February 19, 2016
iPhones don’t kill people, people kill people – February 19, 2016
Court extends deadline for Apple to oppose order to unlock iPhone – February 19, 2016
Twitter, Facebook, Box support Apple against U.S. government demand to hack iPhone – February 19, 2016
No, Apple has NOT unlocked 70 iphones for law enforcement – February 18, 2016
Apple is right, the U.S. government demand would make us all less secure – February 18, 2016
How Apple will fight the DOJ in iPhone backdoor case: U.S. government’s position stands on 227 year old law – February 18, 2016
USA Today alters logo to support Apple in fight against U.S. government overreach – February 18, 2016
Obama administration claims FBI is not asking Apple for a ‘backdoor’ to the iPhone – February 18, 2016
Privacy activists plan rallies across U.S. to support Apple in battle against U.S. government on February 23rd – February 18, 2016
Google CEO Sundar Pichai wishy-washy on Apple’s fight against U.S. government backdoor demands – February 18, 2016
Why Apple is fighting back against U.S. federal government demands for iPhone access – February 17, 2016
Snowden backs Apple in fight over iPhone; blasts Google’s silence – February 17, 2016
Obama administration: We’re only demanding Apple hack just one iPhone – February 17, 2016
Security firm shows how Apple could bypass iPhone security to comply with FBI request – February 17, 2016
What the Apple court order means for your smartphone privacy – February 17, 2016
EFF opposes U.S. government demand to force Apple to unlock terrorist’s iPhone – February 17, 2016
‘Who do they think they are?’ Donald Trump blasts Apple for not unlocking San Bernardino terrorist’s iPhone – February 17, 2016
Tim Cook posts open letter opposing U.S. government demands to bypass iPhone encryption – February 17, 2016
Apple CEO opposes court order to help FBI unlock San Bernardino terrorist’s iPhone – February 17, 2016
Apple wants judge to rule if it can be forced to unlock defendant’s iPhone – February 16, 2016
U.S. House lawmakers seek to outlaw states from banning encrypted iPhones – February 10, 2016
Obama administration wants access to smartphones – December 15, 2015
Obama administration’s calls for backdoors into encrypted communications echo Clinton-era key escrow fiasco – December 14, 2015

27 Comments

    1. Hey, throw the Third Amendment in there, too. 🙂

      “Justice William O. Douglas used the [Third] amendment along with others in the Bill of Rights as a partial basis for the majority decision in Griswold v. Connecticut (1965), which cited the Third Amendment as implying a belief that an individual’s home should be free from agents of the state.”

      https://en.wikipedia.org/wiki/Third_Amendment_to_the_United_States_Constitution

      Your smartphone is arguably at LEAST as personal and private as your home. For many people, it reveals more about one’s personality, thoughts, beliefs, etc. than a residence would.

    1. The whole “modified OS” is a bit of a stretch. If the problem is as reported, i.e. the government just wants to bypass the PIN number lockout and *possible data wipe,” Apple can accomplish this by ( in my very humble opinion ) making changes to the firmware of the phone. Then the government is free to assault the phone as much as they like in search of the actual pin number.

  1. This is getting ridiculous. If the US laws were changed to strictly control the use of guns, maybe this shooting would never have happened. Do US citizens realise just how much the rest of the civilised Western world look upon your gun laws with utter contempt.

    1. I’m with you on that. If the background checks were adequate, This wouldn’t be a problem in the first place.

      But, as far as this being a 1st amendment case, I don’t see it that way. 4th amendment, as an equal protection issue yeah. Either way Ted Olson is a very successful arguer in front of the Supreme Court, regardless of his personal beliefs. And is the right choice to argue this case.

      Don’t back down apple. We’re all behind you on this. All the fbi wants is the ability to get into any Apple iOS product because they can’t crack the system. So they’re using the courts to force apple to do it for them… They have alterior motives. If this was just for one phone, as they claim? They would give the phone to apple, allow them to extract the data, then have apple destroy the phone and the software used to extract the data. But that’s not what they are asking for… Not is that something apple would do in the first place.
      We are all apple customers because they value our privacy and security, and we have their customers best interest at heart. Do t endanger millions for one crazy person.

      Use regular police work, gather your intelligence that way. Any terrorist with their salt wouldn’t use their personal phone anyway, they’d use burners. So what does the fbi think will actually be gleaned from this? Nothing… And they know that. All they want is the ability to crack open an iPhone because they can’t.

    2. Do non-US citizens realize just how much the vast majority of the US looks upon your illogical gun laws with utter contempt?

      You people are utterly helpless. Sitting ducks, future pools of blood, like in the Bataclan. Like we are when we’re in “gun free” schools and other “gun free” zones (where most mass shootings take place). Go figure, the only person with the gun in the “gun free” zone is the killer.

      You have no recourse against a government out of control. That’s why the second amendment exists. And, since it wasn’t the U.S. that brought us such lovelies as Mussolini, Hitler, Pot, etc. I’m sure you understand quite well exactly what that means. Sieg Heil! Have fun trying to get rid of the next one with your butter knives, fool.

    3. I look on most of our gun laws with utter contempt as well. All except one. The 2nd Amendment.

      afarstar1… By all accounts, from all sources there are over 300 million guns in the United States, in the hands of over 100 million private owners. Whenever one nutcase goes wild with a gun, there is a call to punish the 100 million even though their 300 million guns had nothing to do with the crime.

      Each of the last few years, around 9,000 to 11,000 gun deaths occur. The number has been dropping. If we look at it from the 11,000, that shows that less than 0.004% of all the guns in the country were involved in a violent death.

      The majority of those were suicide.
      The majority of criminal cases were concentrated in 2 or 3 cities.

      Assault weapons were used in the low 100s of all those crimes, and in fact more people were killed with blunt instruments than so called assault weapons.

      It is clear that with the exception of 2 or 3 communities, America is the most firearm disciplined country on the face of the planet and we really don’t give a fuck what you or any of the rest of your “civilized” world think about it.

  2. O right!

    The right to bear arms enables criminals and religious nut cases to plan and commit mass murder.

    After the fact of a mass murder, the government wants Apple to provide computer code that will unlock and decrypt the iPhone in order to discover why they did it, when they already have sufficient evidence that they did it in the name of their god and religion.

    Seems to me, that preemptive action to prevent those murderous dudes getting the guns would be of more benefit than ordering Apple to unlock iPhones after the fact. 🙄

  3. Yes America as we know it will end when Apple is forced to unlock a terrorists cell phone. In the meantime Apple is at the forefront of deluging America with H1-B workers and colluding with Google and others to keep salaries artificially low. When were the MDN articles on that subject? You only post dozens a day, maybe you can squeeze one in on immigration, the issue of the century?

    1. First Amendment because the FBI is demanding that Apple write a document with content dictated by the government and repellent to the writer. Forced speech violates the 1st even more than simple censorship. I’m not wild about the Citizens United and Hobby Lobby judgements, but they are the law of the land. Corporations have First Amendment rights like any other “person” in America. Apple’s lawyer in this case was the prevailing counsel in Citizens United.

  4. … Um, interesting. But this situation is significantly about allowing We The People to keep and use the rights afforded to us by the Fourth and Fifth Amendment of the US Constitution. Apple has every right to stand up for its customers rights. No government authority has the right to take them away.

  5. Google AES to find Advanced Encyption Standard…
    «/ AES became effective as a federal government standard on May 26, 2002 after approval by the Secretary of Commerce. AES is included in the ISO/IEC 18033-3 standard. AES is available in many different encryption packages, and is the first publicly accessible and open[vague] cipher approved by the National Security Agency (NSA) for top secret information when used in an NSA approved cryptographic module (see Security of AES, below). /»
    No use encrypting stuff if you are going to leave the encryption key lying around for everyone to use.
    Would you lock up your house and leave a message on the door to tell someone where the key is hidden?
    Der.😜

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