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Comment by wildmusings | Hacker News Reader

I doubt the "code is speech" argument will hold up when the only speaking is to a device that the government has the court-granted right to access. Apple isn't being asked to publish the modified iOS version at-large. Also, commercial speech has substantially less protection than political speech.

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You misunderstand the notion. Happens often because I think "speech" in this case is a misnomer, as it makes people believe that it's about having a monologue or a dialog. That's not the case. This freedom is about expression in all its forms. Which for example includes art, which is the act of creating artifacts to be primarily appreciated for their beauty or emotional power. Art is not necessarily about the author wanting to speak.

Going back to software, the freedom of expression is important, because software, functioning like an extension of us, of our intellect, probably more than any other human occupation except for art, happens to be very opinionated, to expose values and to incite both hope and despair for our future. It's not without reason that software development gets compared with making art.

It's not a wonder that Apple is taking a stand now. Any company worth its salt has values declared long ago and breaking those values is betraying your customers, not to mention that it can also hurt your bottom line. And the people at such companies are more than just cogs in the machine. Many of them work for their paychecks, sure, but many also have gotten in this industry to make a difference and now they risk being coerced in doing something they probably don't believe in.

Take Apple. They promised security and privacy to their customers and I'm sure many people at Apple worked hard to deliver that. How would you feel if you considered this to be your life's work, only to be forced later to aid in doing the exact opposite? Now that's an issue of freedom of expression ;-)

You're stretching the definition of free speech so far that any government regulation of industry would become a First Amendment violation. Not even during the Lochner era was such an expansive reading of rights accepted by the courts.

All of these large tech companies have massive government compliance programs. They regularly comply with government subpoenas for account information that they can access. They most certainly have developed custom software and workflows to make their compliance easier. I don't see how this request is a greater burden than that.

>How would you feel if you considered this to be your life's work, only to be forced later to aid in doing the exact opposite? Now that's an issue of freedom of expression ;-)

I'd feel pretty silly for thinking that I couldn't be compelled by the government to produce secrets I possess. If want to protect my customers from the government, I have to protect them from myself as well. You'd need some kind of multi-party trust system that allows people to require multiple third-party signatures before any code is loaded by the device. Free expression doesn't mean that the government has to refrain from exercise its legitimate authority, just avoid raining reality onto your premature parade.

But this isn't about being compelled by the government to produce secrets. This is about the government wanting you to produce malicious code that you're going to give your customers, signed with your keys. So those customers will receive that code from you, signed in your name.

>This is about the government wanting you to produce malicious code that you're going to give your customers, signed with your keys. So those customers will receive that code from you, signed in your name.

That's just not true. The government is not asking Apple to release this to anyone.

Imagine instead of Apple, we were dealing with a single programmer who wrote security code for a device. So the result is it's a single person being forced to sit a keyboard and type out code for the government.

Does it make a difference that it's a company instead? Should it?

Yes, drawing the line is difficult. Law is not mathematics. A judge must apply his judgment to decide whether a particular court order represents an "unreasonable burden". That is the precedent set by the case United States v. New York Telephone Company. An unreasonable burden for a one-man development shop is not necessarily an unreasonable burden for Apple. Judges are fully capable of considering this.

The precedent for United States v. New York Telephone Company has just recently been judged not to apply to Apple unlocking an iPhone. And unreasonable burden is not the only criteria. In addition, this specific situation has First Amendment implications that United States v. New York Telephone Company did not (although this has not been tested in court yet).

We'll see what the appeals courts think.

Consider however that Apple is being asked to digitally sign the modified FBiOS in order to load it onto the phone. The implications underlying the act of signing are the sort of speech that deserves the highest protection.

The fact that we take a digital signature to mean something about other human beings' intentions is just our own wishful thinking. Our security models rise and fall according to the constraints of reality, not our desires. Apple thought it could be its customers' confidant against the government. Apple is not your lawyer, doctor, priest, or spouse, so it is not entitled to be your confidant in the face of a court order. If they want to protect their customers from government court orders, then they need to re-think their threat model and include Apple as an adversary. According to recent news, that's what they're planning to do. It's also what they've been saying about iPhones for the last few years, even though it's now been shown to be untrue.

> It's also what they've been saying about iPhones for the last few years, even though it's now been shown to be untrue.

Well, the model of phone in that case (5C) is 2.5 years old using a 3.5 year old version of their CPUs lacking some of the modern hardware necessary (Secure Enclave.)

High-level details here: https://www.apple.com/business/docs/iOS_Security_Guide.pdf

That's what I figured at first too, but this line from Apple's open letter says otherwise:

>In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.

This line has been quoted a lot and Apple has not redacted or clarified it. If newer iPhones were not vulnerable to these types of attacks, Apple wouldn't say that they are. Especially since they've openly said that one of their big concerns is damage to Apple's reputation for security and privacy.

The whole point of a signature, handwritten or digital, is to act as proof of identity and intent. If the government can compel Apple to sign FBiOS (against Apple's stated intent of signing their OS), where do you propose the government's ability to coerce a signature stop?

If your handwritten signature, to be interpreted by a machine, is all that stood between the government and their ability to carry out a legal search, I have no doubt that you could and should be compelled to produce it.

In my mind, that leads to scenarios where the government "asks" someone to sign a confession. That's been done before, and it doesn't end well.

No court would ever issue an order forcing you to sign a confession. You could make the same fallacious slippery-slope argument against any government power at all. "If they began to use this in a different way, it would be terrible". Of course, which is why we have a court system that decides what is and isn't an appropriate use of the government's authority.

The 5th amendment guarantees that you can't be forced to incriminate yourself. As an example that courts are perfectly capable of drawing lines, you can be compelled to hand over encryption keys for a third-party's data, but not for your own.

> The 5th amendment guarantees that you can't be forced to incriminate yourself.

It does, and my example was hyperbolic to my detriment by bringing in the 5th. The point I was trying to make was that the act you described (a manual signature to enable a search) was equally transgressive in my eyes.

The 1st Amendment does prohibit government-compelled speech, of which the act of digitally signing is (by analogy to signing) expressive conduct that merits protection. That alone should be sufficient to stop this case.

Your example doesn't apply here. For one, as far as I can tell, being forced to reveal one's own encryption key remains an unsettled matter (I would argue 5th Amendment protections apply, were I before the court). Apple is not being asked to supply something that they possess, they are being asked to use something that they possess, to create something that doesn't exist, to give to the government in order to enable a search. The government hasn't established if they have exhausted their own resources, they haven't (to my knowledge) proposed payment for Apple's services (which would as I see it constitute taking), and they haven't established the probative value of what might be on the phone (probably zip). And, if the product of this search were to come up in court, Apple would have to testify to their methods and be subject to cross-examination.

This whole situation is a tire fire.

Apple isn't being asked to publish the modified iOS version at-large.

Compelled speech in private is still compelled speech.

(Explain your down-votes, please).

The SF/SV perspective is not universal.

The here was an EFF article that mentioned a few cases where the courts have deemed code = speech. The question now is what protections this specific instance of speech is awarded. Here is another review of previous case law. From the second circuit court opinion

"Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code."

http://digital-law-online.info/lpdi1.0/treatise50.html

>"Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code."

Well duh. I can express a book as a C program and that is obviously protected speech. You can't take a shortcut like "is it code" to determining whether something is protected speech. Just because something is expressed in the "language of computer code", doesn't mean it gains constitutional protection as speech. You have to do a substantive evaluation.

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