Apple Targets Freedom of Speech Defense against iPhone Unlock Order

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Apple retained two attorneys who specialize in freedom of speech cases last week, and now has confirmed they're part of the company's defense against a Federal court order to create a special version of iOS the FBI can use to launch a brute force attack on the passcode for an iPhone used in last December's San Bernardino shootings. Theodore Olson and Theodore Boutrous will use the U.S. Constitution's First Amendment protection of free speech to argue the case, and will also object to the government using the more than 220 year old All Writs Act as the basis for the order.

Mr. Boutrous confirmed the strategy to the Los Angeles Times. He said,

The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech.

Apple retained the attorneys after the FBI won a court order compelling the company to create a special version of iOS that removes the ten try limit for login passcodes before destroying the iPhone's encrypted data, takes out the forced wait time between login attempts, and adds in a way to use a computer to automate password entry.

The FBI wants the modified software so it can hack into an iPhone recovered from Syed Rizwan Farook after he and his wife opened fire on their San Bernardino County Department of Public Health coworkers last December. They killed 14 people and injured 22 others, then were killed in a shootout with law enforcement.

The iPhone was issued to Mr. Farook by the county, but wasn't part of a device management. Had it been, the county IT team could've quickly unlocked it. Instead, FBI agents instructed the county to change the iCloud password associated with the device which shut down any chance of obtaining a recent backup from the iPhone.

Apple to use free speech defense against court order to create a hackable iPhone operating systemApple to use free speech defense against court order to create a hackable iPhone operating system

While Apple has been helping the FBI with the iPhone since January, it is contesting the court order because of the precedent it would set. The FBI said this would be an isolated request and that Apple could destroy the code after the case wraps up, but Apple CEO Tim Cook said once the OS was created other agencies and governments would want it, too.

"The government suggests this tool could only be used once, on one phone. But that's simply not true," Mr. Cook said. "Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks—from restaurants and banks to stores and homes."

Mr. Cook's concerns seem to be warranted because the Department of Justice already has about 12 more cases where it wants to force Apple to bypass iPhone security features so they can brute force attack passcodes.

He also said the government is overstepping its bounds, and Mr. Boutrous backed that up saying, "It is not appropriate for the government to obtain through the courts what they couldn’t get through the legislative process."

Apple has until February 26th to formally respond to the court order. Assuming Magistrate Judge Sheri Pym, who issued the order, isn't swayed by Apple's arguments the case will move on to U.S. District Court, and then likely to the Court of Appeals. Assuming the case is still unresolved it could go on to the U.S. Supreme Court.

Using the First Amendment as a defense against this court order isn't unprecedented. Courts have upheld the notion that freedom of speech also means freedom from compelled speech, and that in certain cases software code can be deemed a form of free speech. Based on that argument, the government wouldn't have a right to force Apple to create new code that weakens iPhone security.

The FBI and DOJ will no doubt argue that Apple isn't protected under the First Amendment, and that this terrorist Act warrants what they're still calling a one-off request. Judge Pym will make a ruling after Apple's Friday deadline to reply passes, and regardless of which way that goes this fight is far from over.

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I just hope that the FBI and the the rest of the 3 letter agencies lose.

Otherwise, we’d all better get used to the idea of only communicating/remembering by only writing on the back of postcards. (or the digital equivalent thereof)

ps: has anyone heard why the FBI had the iCloud password changed ?
Were they afraid someone somewhere would “do a remote wipe” of the suspect’s iPhone 5c ?


What horribly grotesque irony now confronts those of us Apple fanboys/girls who loathe & fear the consequences of “Citizens United”:

If we support Apple’s defense under the First Amendment, we must consequently be endorsing the “personhood” of corporations, in order for Apple to be granted any such rights as that.


Some pretty good discussions of Apple’s 1st. Amendment case:

”Apple-FBI Fight Asks: Is Code Protected as Free Speech?”
By Adam Satariano - Bloomberg Business - February 23, 2016
Is software merely a set of instructions, telling a computer what to do? Or is it a unique, creative work that expresses a point of view and is protected under the First Amendment of the U.S. Constitution? The answers to these questions get to a key part of the legal fight between Apple Inc. and the U.S. government.

Apple to argue First Amendment in iPhone encryption fight
by Lance Whitney - c|net - February 24, 2016
To prevent the unlocking of an iPhone linked to the San Bernardino terrorist shootings, Apple’s attorneys will assert that computer code should be protected as free speech.


“Apple Is Said to Be Working on an iPhone Even It Can’t Hack”
By MATT APUZZO and KATIE BENNER - The New York Times - FEBRUARY 24, 2016

“WASHINGTON — Apple engineers have already begun developing new security measures that would make it impossible for the government to break into a locked iPhone using methods similar to those now at the center of a court fight in California, according to people close to the company and security experts…”

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