The FBI wants to get inside an iPhone. The owner of the phone was killed in a hail of bullets. Having killed the person with the passcode to the phone, they then instructed the dead person’s employer to try to change the passcode. In doing so, the employer made it more difficult for the FBI to accomplish its goal.
The FBI gets a friendly judge to write an order to the Apple corporation, telling them they must write code to help the FBI break into iPhones. To do so, Apple would need to compromise its security for all customers using the product for legitimate, useful purposes, such as secure banking and communications.
There is certainly a discussion to be had about privacy and security underway, but we might also do well to consider the First Amendment.
The U.S. Supreme Court has ruled (in 1943) that the First Amendment prohibits the government from compelling speech. That is, the government can’t make you recite the Pledge of Allegiance or salute the flag.
Code is a form of speech. From Universal City Studios v. Corley:
“Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in “code,” i.e.,symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone chose to write a novel entirely in computer object code by using strings of 1’s and 0’s for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English.”
It would seem that demanding someone write computer code is an attempt to compel speech, and prohibited. Considering this is a request to make things less safe and less secure, it seems like a dangerous request for the government to be making.
If the ruling against Apple is allowed to stand, there is a good chance that the government would be able to use this precedent to compel others in other situations to do the same.
That’s why it is dangerous to think of this solely in terms of a single case and specific individuals. The government is able to offer up some really awful people to argue this case, but citizens have to think of this as something that could happen to any of us. Should the government be allowed to ask any web site owner or app creator to write code for their site that reduces security and breaks privacy?
I’d like to see Apple win this one for us. Hopefully their billions of dollars in cash can pay for the ample lawyering necessary to win. It will take deep pockets, but is worth fighting for.
For the government, one lesson could be that if they would like someone to unlock their passcode, and it is really, really important to do so, a good first step would be to not kill the person who knows the code.
