Apple could claim code is protected under First Amendment in FBI battle

24 Feb 2016

As the legal battle continues between Apple and the FBI over the attempted bypassing of encryption on iPhones, the tech giant is expected to claim its code is protected under the First Amendment in its defence.

The request made by the FBI to Apple over the attempted access to the iPhone 5c of San Bernardino shooter Syed Rizwan Farook has brought the topic of encryption to the forefront of a global conversation, with Apple refusing to write software that would allow the government access the phone.

Now, however, Apple is expected to use the government’s Constitution against it in court as, according to Bloomberg, Apple’s lawyers are set to argue that developing software that can bypass the user’s digital signature is a total violation of a person’s right to free speech.

Future Human

While you might not be aware of it, every purchase made through Apple’s App Store, or just with an iPhone itself, includes an encrypted signature that confirms your phone is effectively safe from Apple’s perspective and not liable to third-party access.

The FBI’s attempts to get Apple to write code that would allow for this digital signature to be bypassed is considered an act which is forcing Apple to create a digital signature against its own will, thereby challenging protection of free speech.

A second line of defence

An Apple insider has quietly stated, however, that the defence of an infringement of free speech is definitely being considered by Apple as the case progresses, but will likely be its second line of defence.

Currently, the company’s legal team, led by its general counsel Bruce Sewell, is fighting a first defence on the grounds of a US law known as the All Writs Act.

Written more than 100 years ago, the act was enacted in an entirely different era, claims Apple, which is arguing that it does not offer enough protection from government agencies gaining access to customer information.

As for the free speech argument, not everyone with a legal background is too keen on taking this defence, with one law professor at Washington University in St Louis, Neil Richards, saying Apple’s intentions could cause more damage than good if not argued right.

“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,” he said to Bloomberg. “If we’re not careful, we could end up with a society that strikes a terrible balance.”

US Constitution image via Shutterstock

Colm Gorey was a senior journalist with Silicon Republic