Go Apple Go…. Part 3

The First Amendment Coalition, an award winning nonprofit public interest organization dedicated to advancing free speech and a more open and accountable government, recently published an article on its website arguing that the current court order, requiring Apple to write code to crack its security, violates Apple’s First Amendment Rights.

The basic argument, and one I think is right, is that requiring Apple to write code is akin to requiring Apple to speak.  The United States Supreme Court has never addressed whether or not computer code is speech.  Some appellate courts have addressed the issue and concluded code is speech.  Code is communicative even if it does not directly translate to words.

The general rule is that government cannot compel speech.  There are however numerous exceptions to this rule, which the FAC discusses in its article.  for example, the government may compel speech when it requires drug companies to put warning labels on medications, when it requires companies to file statements with the SEC.

In arguing in favor of the court’s power to force Apple to write the code, the US Attorney’s office argued the All Writs Act gives the court the power to make such an order.  However the All Writs Act is a vehicle with which to enforce court orders – not a basis for making them.  The All Writs Act generally allows enforcement of orders, such as warrants and subpoenas, to force the production of something that already exists, papers, records, computers…. The Act is silent on providing the authority to force the creation of a whole new thing, such as computer code.  As I wrote in an earlier blog on this subject, the US Attorney’s office relied on a case in which an individual was forced to provide a computer and a password under the All Writs Act.  Providing a computer and its password, things that already existed, is very different than forcing the creation of something new.

Bottom line: The first amendment strips the courts of power to compel Apple to write new code to disable security features on the San Bernardino iPhone. Free speech protections are triggered by the order’s directive to Apple to create a computer program. Although the “coerced speech” doctrine is subject to a limited exception for certain comprehensive regulatory laws, that exception is not available here.

Read the full article posted on FAC’s website here.