The EFF's framing has the advantage that it doesn't require the unworkable corollary that the government cannot dictate the content of code--and so operation of digital products--because "code is speech" in all circumstances.
The EFF's framing has the advantage that it doesn't require the unworkable corollary that the government cannot dictate the content of code--and so operation of digital products--because "code is speech" in all circumstances.
In Universal City Studios, Inc. v. Corley (the case about the DVD decryption tool DeCSS), the Court of Appeals stated:
> Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer.
> we join the other courts that have concluded that computer code, and computer programs constructed from code, can merit First Amendment protection, although the scope of such protection remains to be determined.
But First Amendment protections are not unlimited. The court ruled in that case (and others) that:
> the scope of protection for speech generally depends on whether the restriction is imposed because of the content of the speech. Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available. A content-neutral restriction is permissible if it serves a substantial governmental interest, the interest is unrelated to the suppression of free expression, and the regulation is narrowly tailored, which "in this context requires . . . that the means chosen do not ‘burden substantially more speech than is necessary to further the government's legitimate interests.'"
To me, the EFF's argument is more perpendicular to this. They're not arguing about restriction / suppression of free speech, but rather noting that requiring Apple to create, disseminate, and sign an iOS version amounts to compelling speech.
From looking at case law (ianal), this looks murky. Commercial speech (which this would be) has a history of being subject to a different interpretation of free speech than individual.
The obvious example is cigarettes: the government compels private cigarette companies to include warnings on their product packaging for the good of the state.
The twist here is the all/nothing nature of certain encryption questions. Ultimately, we're going to get back to the Clipper Chip, Round 2 and whether private companies have the right to create a system even the government can't breach.
>The Order is unconstitutional because it compels Apple to express itself in conflict with its stated beliefs. The Order forces Apple to say something it does not want to say and that it believes is “dangerous.” It then forces Apple to endorse code it does not want to endorse and thereby undermine the trust it has established in its digital signature. Each of these acts of compelled expression implicate the First Amendment independently, but together they are even more harmful, hindering Apple’s ability to communicate its desired messages to its users, and to the world, into the future.
The FBI also could've ordered Apple to sign their house-made FBIOS for iPhone to crack the decryption, and Apple complying would've undermined the iOS security at least as must as the current scenario.
https://www.ftc.gov/enforcement/statutes/federal-cigarette-l...
Some have opined that the FBI submitted the NYC case when Judge Orenstein was likely to get the case in order for it to be struck down, after which they go to their preferred playground: Congress.
In the event Congress passes a law forcing Apple to sign code they don't want to sign, we'll long have been hearing rumbles about Apple moving to Ireland or wherever by then.
(I don't know the answer and couldn't find it through a quick search - just pointing out what ridgeguy probably meant)
They are just worried that a health warning on all their products would affect their products. Just because they don't want the health warning to be true, doesn't mean they don't believe it is true.
I might believe, for example, that african americans are unreasonably targeted by law enforcement. But, even so, the government cannot compel me to attend a black lives matter protest.
I can guess why the EFF is making it though. A decision vacating the order because of 1st amendment protections seems like it could also be a precedent against something like a version of CALEA expanded to include Apple, or even CALEA as it stands now.
Conversely should the first amendment not protect Apple from having to cryptographically sign their code, then arguably the government should also be able to force a person to cryptographically sign a message that runs contrary to their views. Which seems a pretty clear violation of the freedom of speech.
If someone chose to write a document in LaTeX should be considered different for constitutional purposes as compared to it being written on paper?
Programmers communicating ideas between each other inevitably use code to communicate. Why shouldn't this speech be protected?
If code truly was "just a blueprint", why do we care so much about how code is expressed? Why do we care how easily it is for one to comprehend and understand and in modern times emphasise that "code meant for humans to read, and only incidentally for computers to interpret"?
If a company, made up my the coordinated/chaotic movement of individuals, can be considered to express speech, why shouldn't a computer program, embodied with the spirit of the designers not be considered to express speech?
LaTeX is rather the mean by which the text is written, like if it was typed on paper or engraved in a wall. But the text being written would express an opinion.
Developers caring about code readability and style isn't different from engineers having strict guideline on how to express a design in a blue print, making tolerances explicit and the overall design clear to read. That is good craftsmanship but not the expression of an opinion.
The only limit I can think of is when the object itself might have a symbolic meaning. The blueprint of a swastika would be more than just a technical design.
I can also turn your argument on its head. What if I express in code the design of an AK47. It would be free speech. Then for the same reason than a musical score requires an instrument, a 3d model requires a 3d printer. Is the 3d printed fully working AK47 the expression of free speech?
Unfortunately the law disagrees.
> LaTeX is rather the mean by which the text is written, like if it was typed on paper or engraved in a wall. But the text being written would express an opinion.
Unfortunately case law disagrees (273 F.3d 446).
> Developers caring about code readability and style isn't different from engineers having strict guideline on how to express a design in a blue print.
See 176 F.3d 1132 and 192 F.3d 1308.
> Is the 3d printed fully working AK47 the expression of free speech?
No, but the program that produced 3d printed is considered speech (logical consequence of 60 USPQ2d at 1964-1965). This speech is of course subject to restrictions (492 U.S. 115, 126). Note that forms of speech that describe how to construct weapons may not be protected (see 461 F.2d 1119 for an example of explosive devices).
Conveying to whom? I think this is where the argument falls apart. Yes, Apple signs updates as a way of conveying their veracity to users. But Apple is not being forced to send this update to anyone, much less vouch for its veracity.
Forcing Apple to publish this update to iPhones at-large would be compelled speech, in my opinion.
I'm not convinced by the argument that code-signing has some special status, and should be treated differently than other technical machinery. Let's do a little thought experiment. Let's say that Apple has a database with everyone's iPhone PIN in it. Except that this database is held in a machine, owned by Apple, with similar security as an iPhone 5C. It can release the PIN to the corresponding end-users, but only after successful authentication with their password. It has simple software checks to prevent Apple's employees from querying arbitrary people's PINs. To retrieve someone's PIN in response to a court order, Apple would need to update the code on this device to allow arbitrary PIN queries. This would require signing that update. Could the government compel them to do that?
Specifically-
>It makes no difference that the Apple’s edited code and signature will be communicated only to the government or internally. The compelled loyalty oath struck down in Speiser v. Randall, 357 U.S. 513, 515 (1958), required those veterans applying for benefits only to submit a form to the government. The loyalty was unconstitutional despite the fact that they were not required to make any type of public affirmation. Id. at 529
The U.S. Supreme Court in its review asked a more basic question: With the loyalty oath has California chosen a fair method to determine whether a tax exemption claimant is in fact someone to whom the criminal acts specified applies. In other words, though it is reasonable to deny a claimant a tax exemption if the claimant is involved in a criminal behavior, has the state arrived at a mechanism which demonstrates the criminal behavior?
The court ruled that because the state requires the claimant to show they are not advocating state overthrow and hence are not criminals within the applicable laws, the loyalty oath requirement to obtain the tax exemption is unconstitutional. The burden of proof for a criminal action rests on the state and not on the individual private citizen. In other cases, the Supreme Court has upheld the constitutionality of loyalty oaths requirements but those involved public officials and not private citizens.
If Wikipedia's summary is accurate, this case is not very convincing as precedent for the current Apple cases.
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HackerNews is rate limiting me, so here's my reply to the below:
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My point is that when they sign and publicly release updates, they are in fact engaging in speech (protected speech, I would emphatically argue). They are telling all of their users that this update is trustworthy and authentic.
When they comply with the current court orders, there is no such communication to a human being. Apple is not communicating anything to anyone. The government of course knows that the update isn't authentic, they're the ones compelling them to produce the update. They are hacking a machine, not engaging in speech.
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HackerNews is _also_ rate limiting me, so here's my reply to the below:
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Ah, okay. I understand your perspective but completely disagree. I think the act of writing the code/speech/doing the signing is what should be protected.
Apple does not own the phone, nor does it posses the data. In the case where apple owns the server and a customer's data resides on it the court may compel Apple to provide the state the evidence. Similarly, if Apple posessed the key to the device they would be compelled to provide it.
Apple has intentionally designed the system so that users are able to use their phone without storing the data or encryption key on Apple's servers to avoid that thought experiment because everyone agrees that that thought experiment leads to apple having to provide the keys/data.
Also, Apple doesn't have to update the code, they need to provide the PIN, how they do it is completely up to them. If they refuse a search warrant will be issued and the US Marshalls will seize the evidence.