Apple lobbed a Constitutional bomb against the government Friday when it filed a motion to reverse a court order to unlock a gunman’s iPhone.
From day one, CEO Tim Cook promised to fight the FBI’s request to hack an iPhone belonging to a man behind the mass shooting in San Bernardino, California.
Providing the information, Cook said, “would undermine the very freedoms and liberty our government is meant to protect.”
Apple’s motion, filed Thursday afternoon, echoes that sentiment. In it, attorneys from Gibson, Dunn, & Crutcher argue the company’s forced compliance with the FBI would violate both the First and Fifth Amendments of the Constitution.
Aside from Constitutional arguments, Apple motion also heavily focuses on the All Writs Act, the 1787 statute the FBI has cited to compel Apple to cooperate. Namely, attorneys argue the 229-year-old law simply doesn’t apply to the case.
Apple’s lawyers argue the government’s request that the company write code it doesn’t want to violates the First Amendment’s guarantee to free speech.
“The code must contain a unique qualifier ‘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,” attorneys for Apple write in the motion, citing language from an initial court order
. “This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment.”
Nonprofit digital rights group the Electronic Frontier Foundation, which became involved in the case “early on,” plans to file an amicus brief in support of Apple, focusing on these First Amendment arguments, staff attorney Andrew Crocker told Business Insider.
“Generally, the First Amendment says the government can’t force you to say something, especially if you disagree with it,” Crocker explained. “Well, by being forced to write code, the government is asking just that.”
“Well-settled law,” as Apple’s attorneys note in the motion, has established code as free speech within the context of the First Amendment.
“The general idea is that the First Amendment protects all kinds of expression, whether that’s speech, musical scores, or mathematical equations,” Crocker explained.
And Apple does disagree with software the government wants.
“When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit,” the motion reads.
The court order also requires that Apple cryptographically “sign” any software it creates.
By signing the software, “Apple is forced to verify that the software comes from Apple, it forces Apple to convey that message, which undermines the one it’s been sending to consumers,” staff attorney on the ACLU’s Project on Speech, Privacy, and Technology Esha Bhandari told Business Insider.
The ACLU plans to file an amicus brief, focusing on Fifth Amendment arguments, in support of Apple, according to Bhandari.
The Fifth Amendment guarantees the right to “due process of law.”
“[B]y conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorised, highly burdensome, and contrary to the party’s core principles, [the government’s request] violates Apple’s substantive due process right to be free from the ‘arbitrary deprivation of [its] liberties,” Apple’s attorneys argue.
In other words, Apple doesn’t have a strong connection, if any, to the San Bernardino shooting. And even if it did, previous laws don’t outline whether or not the government can make this type of request from a private company.
“This kind of conscription, we’ve never seen it before so the courts have never really seen it,” Bhandari explained. “While the government has rights [in regard to warrants], those rights have never include asking a company to create something in this way.”
The Fifth Amendment could also apply to this case since the company disagrees with the ideological meaning behind creating the software.
“You create something of your own labour that you don’t want to create, that you didn’t already create,” Crocker explained. “It’s very parallel to the First Amendment argument, just in a different way.”
Not only does the FBI’s request lack a legal precedent, the motion argues that the government “has produced nothing more than the speculation that this iPhone might contain potentially relevant information.”
FBI director James Comey did express uncertainty about the contents of the phone in a statement.
“Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t,” he said. But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.”
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