Apple’s Best Defense in FBI Encryption Case Might Be Found in the First Amendment

Apple’s Best Defense in FBI Encryption Case Might Be Found in the First Amendment

By now you’ve certainly heard about the looming legal battle between Apple and the U.S. government. If you have access to a computer and internet it would be almost impossible to not have heard at least one comment, perspective, or show of support for one side or the other. What you may not have heard yet, though, is the most recent way Apple’s team of lawyers plan to go about their defense.

According to Wired, Apple’s lawyers are prepared to invoke one of the country’s most protected and valued rights — that being the First Amendment, and specifically their freedom of speech. There are actually two ways they plan to approach this delicate issue.

The first, and considered a more shallow of an argument by experts in the field, is that technical coding is a language and therefore speech. For the government to compel (force) Apple to create the backdoor encryption code they have publicly and vehemently spoken out against would be the equivalent of forcing them to say something they don’t want to say.

The next point is really a continuation of that line of thinking, but bolsters their argument in the eyes of experts. In order for Apple to do what the Federal Bureau of Investigation is asking them, they would need to create an entirely new version of their iOS software that would specifically eliminate the very security protections they’ve built into their phones. To see that through, the company would also have to use its digital “signature” key to sign the software, thus signalling to the phone’s software to accept the encryption.

This is the part that makes it particularly interesting to people like Jennifer Granick, director of civil liberties for the Center for Internet and Society at Stanford Law School.

“The human equivalent of the company signing code is basically saying, ‘We believe that this code is safe for you to run,’” Granick told Wired. “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.”

The courts actually have some precedent already set in this area. In the mid 1990s, the case of Bernstein v. U.S. Department of Justice established that code is a form of speech and is, in fact, protected under the First Amendment. Apple is known for efficiency — an iPhone 6, for instance, takes just under two hours to charge using a 12-watt USB power adapter — but it seems likely this case will be a long, drawn out war with Constitutional Rights being invoked.

Nate Cardozo, a staff attorney working on another amicus brief for the Electronic Frontier Foundation agreed with Granick’s assessment.

“In the computer security world the digital signature is affirmation that not only is this code genuine, but it’s intended,” Cardozo said. “[I]f Apple signs this [software tool], it’s the computer version of Apple saying, ‘Yes this is us; yes we meant to do this; and yes it’s a genuine representation of our will.’”

Clearly Apple has taken a stand that would be in stark contrast to that notion if compelled to create this backdoor encryption, but ultimately it will be up to the courts to decide if they agree with such logic.

Staff

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