Apple plans to argue FBI’s order to unlock iPhone violates its free-speech rights

BY Killian Bell

Published 24 Feb 2016

iPhone passcode

Apple’s fight with the FBI could be about a lot more than unlocking just one iPhone. A new report from Bloomberg suggests Apple will argue that it’s actually about free speech, and how its iOS code should be protected under the First Amendment in the same way a journalist’s work is.

In an effort to sidestep the FBI’s request for a backdoor in iOS, which could help it gain information about the San Bernardino attack, Apple is expected to argue that creating one — or being forced to create one — violates the U.S. Constitution, and its own philosophy.

“Just as the government can’t make a journalist write a story on its behalf, according to this view, it can’t force Apple to write an operating system with weaker security,” writes Adam Satariano.

That’s because iOS uses digital signatures to ensure that the software you download for it is authorized by Apple, and safe to use. When you install a new title from the App Store, iOS checks its digital signature to confirm it has been approved before allowing you to use it.

Because Apple is being asked to create a digital signature for software it does not approve of, to help the government obtain the personal data of one of its users, privacy advocates believe Apple has a strong First Amendment case.

“The argument is if all software is speech and all data flows are protected, then everything we do with communication is protected, and any regulation of the digital society becomes impossible,” said Neil Richards, a law professor at Washington University in St. Louis.

However, Apple’s main argument is that the government is exceeding the limits of the law by forcing it to write new code that goes against its own philosophy and security protocols, and breaches user privacy.

Free speech will be a secondary argument in Apple’s response to the government this week, said an Apple executive who asked not to be named because the company’s filing isn’t yet public. The company’s central case is that the government is overstepping its authority under the All Writs Act, a centuries-old law that courts have interpreted to give wide latitude to law enforcement agencies to get customer information from companies.

Apple is also expected to ask Congress to decide this particular case concerning the iPhone used by one of the San Bernardino shooters, rather than the courts. The company will reportedly argue that the Obama administration’s request to hack an iPhone is improper under the All Writs Act.

“Apple’s effort would move the contentious policy debate between digital privacy rights and national security interests to Congress, where Apple wields considerably more influence,” reports The Orange County Register. “Apple spent nearly $5 million lobbying Congress last year.”

Apple has been publicly fighting the FBI’s request since it was made public. CEO Tim Cook published an open letter to explain why Apple was fighting it, then reached out to employees in a company-wide memo to thank them for their support, and to urge the FBI to drop its case.