Apple to argue First Amendment in iPhone encryption fight

To prevent the unlocking of an iPhone linked to the San Bernardino terrorist shootings, Apple's attorneys will assert that computer code should be protected as free speech.

Should the computer code for an iPhone be considered free speech?

CNET

Apple will apparently turn to the First Amendment in its fight against a court order demanding that it write code to skirt an iPhone's security features.

On February 16, a federal judge ordered that Apple cooperate with the FBI in unlocking an iPhone 5C used by one of the terrorists in the San Bernardino shootings. The order would require Apple to build a custom version of its iOS mobile software so that investigators can access data protected by encryption. Apple has said that the breach, however well-intended, could in essence create a backdoor to countless iPhones.

The case strikes at the heart of the clash between privacy and national security. Apple and other technology companies have argued that encryption -- the scrambling of data so that it can be read only by someone with authorized access -- is necessary to protect private, personal information and communications. But law enforcement agencies say that technology hinders their ability to disrupt criminal and terrorist activity.

To force the issue of gaining access to the iPhone 5C tied to the San Bernardino massacre in December, in which 14 people died and 22 were injured, the government has called on the All Writs Act, which was first passed by Congress in 1789 and amended over the years. The Act gives the government the power to issue orders under extraordinary circumstances when no other law or statue can be applied.

Theodore Boutrous, one of the attorneys on Apple's team, told the Los Angeles Times in a story published Tuesday that one of the strategies will be to argue that using the All Writs Act violates Apple's right to free speech. That's because, the argument goes, computer code like that underlying the iOS software is protected under the First Amendment.

"The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech," Boutrous told The Times.

Boutrous said that the courts have deemed the writing of computer code a form of speech protected by the First Amendment.

In a 1999 case known as Bernstein v. US Department of Justice, a graduate student intended to publish an algorithm for an encryption equation he created. The government wanted to review Bernstein's information and force him to obtain a license to publish it. Bernstein sued the government, arguing that such a demand infringed on his First Amendment rights. The Ninth Circuit Court of Appeals found in favor of Bernstein.

However, the matter isn't so cut and dried. Other judges have found that free speech doesn't apply to computer code, according to Bloomberg. The law "is murky in this area," Michael Froomkin, a law professor at the University of Miami, told the news agency.

The American public is divided on the question of Apple's stance. The Pew Research Center said that about 51 percent of those it surveyed believe the company should comply with the court order, while 38 percent said it should not unlock the iPhone. A Reuters poll came back with a nearly opposite finding: 46 percent of respondents agreed with Apple's position and 35 percent disagreed.

Apple has until Friday to formally respond to the court order, and a hearing on the matter is set for March 22. CEO Tim Cook has said the Cupertino, California-based company is willing to take the case all the way to the US Supreme Court, if necessary.

Meanwhile, Cook wants Congress to form a commission to look into the larger clash over technology and security to "discuss the implications for law enforcement, national security, privacy and personal freedoms." A congressional committee on Wednesday will consider a proposal to create such a commission.

Apple did not immediately respond to CNET's request for comment, nor did Boutros.

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