Apple will use a free speech defence in its war with the FBI

Apple is planning to use a free speech defence in its ongoing battle with the FBI — arguing that code counts as “speech” and so it cannot be forced to write code to break into an iPhone.

The Cupertino technology company is locked in a legal struggle with the Bureau over access to an encrypted iPhone. The FBI is demanding that Apple create software to help it break into the phone belonging to one of the San Bernardino shooters. But Apple refuses, arguing that doing so would undermine the security of all iPhones, and set a dangerous precedent.

On Wednesday, Bloomberg reported that Apple intends to use free speech as one element of its defence as it challenges a court order to comply with the FBI’s demands. An unnamed Apple executive told the news outlet that it will argue that computer code amounts to speech — and as such, the company and its engineers cannot be compelled to code (or “speak”) against their will.

And Apple lawyer Theodore Boutrous told The Los Angeles Times that “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.”

Jennifer Granick, director of civil liberties at Stanford University’s Center for Internet and Society, told Bloomberg: “The signature [that Apple signs software with] is part of Apple’s security ecosystem; it’s a promise that Apple believes this code is safe for you to run … The phone doesn’t run software that Apple hasn’t signed.”

Reuters also speculates that free speech concerns will be part of Apple’s defence, based on discussions with lawyers following the case. But Duke University law professor Stuart Benjamin says it could be a uphill struggle. “That is an argument of enormous breath,” he said. Apple will need to prove the code has a “substantive message.”

A cornerstone of Apple’s public defence so far is that creating this tool for the FBI amounts to a backdoor, which makes all its users less safe.

Apple and its supporters have also expressed concerns that the case could set a far-reaching precedent. If Apple can be forced to create new software to hack into its customers, then company could be legally forced to hack their users.

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