Forcing Apple to unlock the iPhone of San Bernardino shooter Syed Farook would violate its constitutional right to free speech, the company argued Thursday in a court motion attempting to quash a court order requiring it to cooperate with the FBI.
Invoking U.S. Supreme Court rulings that the First Amendment protects “both the right to speak freely and the right to refrain from not speaking at all,” Apple’s lawyers argued that requiring the company to write software to bypass the security features of Farook’s phone “amounts to compelled speech . . . in violation of the First Amendment.”
“Apple wrote code for its operating system that reflects Apple’s strong view about consumer security and privacy,” the court filing said. “By forcing Apple to write software that would undermine those values, the government seeks to compel Apple’s speech and to force Apple to express the government’s viewpoint on security and privacy instead of its own.”
The free speech argument raises the stakes for what had already become a major test between law enforcement and privacy advocates over the limits of government intrusion into the growing world of sophisticated electronic devices. Courts have found in previous cases that computer code is protected speech under the First Amendment.
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Other major technology players showed signs that they intended to take sides in the dispute. Microsoft on Monday pledged to file a court brief supporting Apple’s resistance to the FBI’s demand, and Facebook and Google indicated that they would the same by the deadline next week.
Meanwhile, FBI Director James Comey, in testimony before Congress, agreed with Apple’s contention that a ruling against the company would likely apply to dozens of other cases. He noted that a ruling in favor of Apple would leave the FBI unable to “read the communications of terrorists, gangbangers, pedophiles, all different kinds of bad people.”
Comey told the House Intelligence Committee that the debate over encryption versus security “is the hardest question I’ve seen in government.”
He said Apple had been cooperative in the San Bernardino case until the agency asked for help disabling the security features of Farook’s phone that would destroy data if the FBI tried 10 incorrect passwords. The FBI hoped to open the phone with a “brute force” computer program that would attempt all conceivable password combinations until it hit on the right one.
Comey conceded at the hearing that the case will create a precedent, saying “it will be instructive for other courts.”
That was one of the concerns Apple raised in its appeal.
“This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe,” Apple argued.
“Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote,” the company’s lawyers wrote.
Comey too urged Congress to take action.
The larger question is not going to be answered in the courts and shouldn’t be
FBI Director James Comey
“I think the larger question is not going to be answered in the courts and shouldn’t be, because it’s really about who are we going to be as a country and how do we want to govern ourselves,” Comey said.
Key members of Congress are proposing a commission that would take a year to come up with recommendations on what to do about conflicts between encryption and security. Sen. Dianne Feinstein, D-California, and Sen. Richard Burr, R-North Carolina, are working on a bill that would explicitly require tech companies to assist law enforcement when there is a court warrant.
Apple conceded in the court filings that it is capable of unlocking the phone used by Farook, who along with his wife killed 14 people in the December terror attack in California.
A declaration in the filings by Erik Neuenschwander, Apple’s manager of user privacy, said it “likely would necessitate six to ten Apple engineers and employees dedicating a very substantial portion of their time for a minimum of two weeks, and likely as many as four weeks.”
The government is demanding Apple’s cooperation to open the San Bernadino shooter’s phone under the All Writs Act, a vague 1789 law granting courts power to issue orders not covered by other laws.
The company’s lawyers argued that such a broad interpretation of the All Writs Act is perilous and that the case violates its Fifth amendment right of government incursions on liberty.
“If Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user?” the filing said.
Legal experts contacted by McClatchy suggested the company could have a persuasive legal argument that using the All Writs Act to force the company to create new software is beyond what’s reasonable.
“It is notable that this is not handing over the key, this is building the door,” Alvaro Bedoya, executive director of the Center on Privacy and Technology at Georgetown Law School, said in a recent interview. “What can the government not do if the government can force you to take your employees and weaken your own systems?”
Government prosecutors have until March 10 to respond to Apple’s argument for quashing the order. Whoever loses is expected to appeal and the case could go to the U.S. Supreme court.