Apple may use a First Amendment defense against FBI iPhone hack demand – and it just might work

“Apple’s lawyers indicated yesterday that they plan to use a First Amendment defense in the San Bernardino iPhone case, arguing that if code is speech, then the government is compelling the company to say something it doesn’t want to by forcing it to cooperate in cracking the phone’s password,” Kim Zetter reports for Wired. “But, as Motherboard previously pointed out, experts say the company might actually be onto something.”

“A famous encryption case known as Bernstein v. US Department of Justice established long ago that code is speech and is protected by the First Amendment,” Zetter reports. “Compelling Apple to write code would be the equivalent of the government compelling Apple’s speech. But that’s not the most important argument in this case. Instead, it’s the digital signature that Apple would use to sign that code that is the key to Apple’s First Amendment argument, say legal experts who spoke with WIRED.

Zetter reports, “‘The human equivalent of the company signing code is basically saying, ‘We believe that this code is safe for you to run,” says Jennifer Granick, director of civil liberties for the Center for Internet and Society at Stanford Law School. ‘So I think that when you force Apple to cryptographically sign the software, it has a communicative aspect to it that I think is compelled speech to force them to do it.'”

Much more in the full article – recommended – here.

MacDailyNews Take: All of this court action will ultimately serve to help inform Congress to write new law(s) for modern times.

FBI chief acknowledges Apple case may set privacy precedent – February 25, 2016
Gruber: The next step in iPhone impregnability – February 25, 2016
U.S. government sought data from 15 Apple devices in last four months – February 25, 2016
Apple CEO Tim Cook says iPhone-cracking software the ‘equivalent of cancer’ – February 24, 2016
Apple’s fight with U.S. could speed development of devices impervious to government intrusion – February 24, 2016
Apple to argue that FBI court order violates its free-speech rights – February 24, 2016
Apple, the U.S. government, and security – February 24, 2016
Congressman Ted Lieu asks FBI to drop demand that Apple hack iPhones – February 23, 2016
In the fight to hack iPhones, the U.S. government has more to lose than Apple – February 23, 2016
Here are the 12 other cases where the U.S. government has demanded Apple help it hack into iPhones – February 23, 2016
John McAfee blasts FBI for ‘illiterate’ order to create Apple iPhone backdoor – February 23, 2016
U.S. government seeks to force Apple to extract data from a dozen more iPhones – February 23, 2016
Apple CEO Cook: They’d have to cart us out in a box before we’d create a backdoor – February 22, 2016
Tim Cook’s memo to Apple employees: ‘This case is about more than a single phone’ – February 22, 2016
Obama administration: We’re only demanding Apple hack just one iPhone – February 17, 2016


  1. “MacDailynews Take: All of this court action will ultimately serve to help inform Congress to write new law(s) for modern time”

    And in my suspicious mind, that does not bode well for personal privacy. IOW, Congress will write some dumb law that will ultimately enable the cops get what they want – as they always do.

    1. First, the police do not always get their way. Study the history of laws as well as court rulings.

      Second, there is a reason why the police do get some things their way: it helps them do their job better. It’s easy to get caught up in this case and lose sight of the fact that the police do great things everyday. If not for the police, you would be likely victimized by a criminal, and not like it too much.

      It’s funny, but some people love to hate on the police, except after a crime or terrorist attack occurs…then all of a sudden people are glad they exist. We definitely need to keep the powers of the police in proper check, but let’s not throw the baby out with the bathwater and just hate on the whole concept of laws and law enforcement. If you lived in a world without that, you’d know how important they are.

      1. I don’t think that any of us here would argue that the police are automatically the bad guys, but unfortunately there are some police officers and some FBI agents who attempt to assume powers far in excess of those that they have been given. Most officers are definitely good guys, but the number of bad guys amongst them is not insignificant.

        If the police always worked within the law, few law abiding members of the public would have any complaints. It’s important that the police and the FBI should work within clearly defined limits and should be properly accountable for their actions. I would have a lot more confidence in the police if any individual who exceeded his powers didn’t generally appear to be protected by his colleagues and superiors. If the police turn a blind eye to unlawful behaviour within their ranks, then they will lose the trust of the public.

        It would be a sinister state of affairs if those whose job is to enforce the law do not themselves respect the law.

    1. My laugh is the sad laugh like the Russian peasant who was so glad that the footfalls she heard were the KGB…going to her neighbor’s apartment.

      I would gladly pay for the SJW and the lesser nobility of the hurty feelings brigade to move to a small unpopulated island and grow up.

  2. I have no idea where this ‘First Amendment’ stuff is coming from. Here’s the latest from MacNN, who point out that in Apple’s response document they are citing the Fourth Amendment. Maybe Apple rumor mongers can’t count. (o_0)

    Apple tells court Constitution ‘forbids’ FBI compliance

    Apple has now presented a legal response that officially challenges the Department of Justice over its demands that the company creates access to an iPhone sized as part of the San Bernardino workplace violence case, which the FBI has consistently characterized as a “terrorist” incident — a move critics say is really the agency leveraging the tragedy in an effort to weaken privacy laws, and which Apple’s attorney’s called “forbidden” by the Fourth Amendment of the US Constitution.

    “This is not a case about one isolated iPhone,” begins the 65-page document. It sets out to establish Apple’s perspective that the government’s demands mean nothing short of creating “a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance.”

    Apple’s position is that the All Writs Act which the FBI quotes as the centerpiece of its court case “does not give the district court a roving commission” to allow the undermining of security. “In fact, no court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it.”

    Yes indeed! That’s more like it!

    IMHO the FBI is getting a big black eye from this one. 💥😵

    The Fourth Amendment To The US Constitution

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    1. Well well! Skimming through the 65 page document, it turns out that Apple cites the First, Fourth and Fifth Amendments to the US Constitution. This is a shotgun document the blasts the arguments of the FBI and Department of Justice. Bravo!

      So yes, in part, Apple applies the First Amendment.

      Rather than start quoting the document right and left, I’ll leave everyone to digest it in whole and comment thereafter, myself included. But I have posted an initial summary at my Mac-Security blog. (Click on my name to get there).

      1. Regarding the First Amendment, I was not aware it protected against coercing someone to say something. I was under the impression that the Amendment protected against preventing speech from being heard/expressed (e.g. censorship). I believe current slander and libel laws were designed to help define the limits offered by the First Amendment.

        1. The document discusses:

          “Apple’s First Amendment rights against compelled speech”. . . .

          “The First Amendment Prohibits The Government From Compelling Apple To Create Code

          “The government asks this Court to command Apple to write software that will neutralize safety features that Apple has built into the iPhone in response to consumer privacy concerns. Order ¶ 2. The code must contain a unique identifier “so that [it] would only load and execute on the SUBJECT DEVICE,” and it must be “‘signed’ cryptographically by Apple using its own proprietary encryption methods.” Ex Parte App. at 5, 7. This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment.”

          I don’t know if this approach is new. But in a roundabout way it is saying that Apple’s code is ‘free speech’. The court order is preventing Apple from using their right to ‘free speech’ by preventing them from coding as they choose, replacing their ‘free speech’ with compelled speech via the court.

          It’s going to be interesting.

          1. That’s a very interesting interpretation of the First Amendment. 😀 I suppose then an argument can be made that by Apple claiming that freedom they are infringing on the provisions provided by the Fourth Amendment allowing conditions in which search and seizure can be performed. There doesn’t seem to be anything that says Apple cannot retain solely to itself such a ‘hack’ should one be created and seems to give reasonable provisions to limit its working to devices specified by Apple given each proper request.

            1. That’s diving deeper than I can swim in the legal system. But the argument from Tim Cook is that once the ‘cancer’ has been created, the US government, or any other government, can ask forever onward that the ‘cancer’ be infected into any other iOS device at any time, provided a legal warrant is provided. That would effectively bring the status quo back to what it was before Apple created end-to-end encryption in iOS devices, at least from the point of view of the governments. But I need some coffee…

            2. Secret passages, backdoors, escape routes are all time honored creations by designers. Having them in a system I feel is a ‘failsafe’ should the designed system/structure be misused. Creating such failsafes I feel would put the fear of discovery back in the minds of those that would consider misuse. I am not proposing that those failsafes should be left vulnerable. Hiding and guarding those failsafes is essential to not only have a balanced system but also to not put Apple in the extreme position of flaunting the Constitution in the pursuit of protection from those that do.

            3. What a great observation. Some of my favorite dreams, aka subconscious creative events, are full of secret passages, elevators, stairs, etc. Stuffing such things into code takes a lot of time, probably done after hours, likely these days to be noticed or even sought for by project managers. Steve Jobs made easter eggs verboten in OS X anything.

              Certainly, from my computer security research and observations over time, backdoors, secret universal passwords and other such self-destructive crap turn out to be fairly regular events. Such things are now INFAMOUS in Internet routers. I’d almost believe they’re standard practice. I consider this to be sheer stupidity because someone is going to figure them out and exploit them. This is clearly an era of bad security exploits.

    2. While I do agree with the majority of what you wrote, I think having something that completely circumvents the proper execution of the provision of “but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” is also unconstitutional.

Reader Feedback

This site uses Akismet to reduce spam. Learn how your comment data is processed.