Apple Likely to Use First Amendment to Fight Court Order over Encryption

Apple iPhone

Apple iPhone 5CApple Inc. (NASDAQ:AAPL) is expected to use the First Amendment’s protection  of free speech to prevent the court order requiring it to help the Federal Bureau of Investigation (FBI) unlock the iPhone 5C owned by one of the shooters in a terrorist attack in San Bernardino, California.

Judge Sheri Pym of the U.S. District Court of Los Angeles ordered the iPhone maker to provide “reasonable technical assistance” to the FBI in its investigation in the San Bernardino case.

Apple CEO Tim Cook said the company is opposing the court order because the demand of the FBI to create a new version of the iOS is equivalent to a backdoor or master key.  The company considers the demand “too dangerous to create” as it threatens customer’s security.

Cook said creating that kind of software undermines decades of security advancements protecting customers from sophisticated hackers and cybercriminals. He also pointed out that the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.

Apple is concerned that the FBI’s demand would undermine the freedom and liberty that must be protected by the government.

Facebook (NASDAQ: FB), Twitter (NYSE: TWTR), and Google expressed support Apple’s decision to challenge the court order.

Apple hired well-known free-speech lawyers

Apple hired well-known free-speech lawyers, Theodore Olson and Theodore Boutrous to help stop the court order, according to Reuters based on court documents.

A person familiar with the situation said the iPhone maker was given additional three days until February 26 to respond to the court order.

Riana Pfefferkorn, a cryptography fellow at the Center for Internet and Society at Stanford University believed that the FBI’s demand raises a significant First Amendment concern because the agency is not only asking Apple to turn over information in its position, but to make a new forensic tool.

Apple could argue that requiring it to make a specific computer software amounts to an unlawful compelled speech, according to Pfefferkorn.

Law professor Stuart Benjamin of Duke University said a First Amendment argument is of “enormous breadth” because Apple needs to show that the new computer code conveys a “substantive message.”

FBI’s demand could harm Apple’s brand

On the other, Michael Froomkin, a law professor at the University of Miami said U.S. prosecutors were smart to use the mass shootings to a test case to challenge Apple and other technology companies on the issue of encryption. He explained that mass shootings had huge emotional impact. The can also use the horrific events to demonstrate the potential dangers from armed militants.

“This is one of the worst set of facts possible for Apple. That’s why the government picked this case,” said Froomkin.

He added that Apple needs to fight the FBI’s demand to create a backdoor to the iPhone because it could potentially harm the company’s brand worldwide. Froomkin said, “All these demands make their phones less attractive to users.”

Source: Reuters

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