Why Forcing Apple to Write and Sign Code Violates the First Amendment
eff.org
eff.org
The EFF's framing has the advantage that it doesn't require the unworkable corollary that the government cannot dictate the content of code--and so operation of digital products--because "code is speech" in all circumstances.
https://www.ftc.gov/enforcement/statutes/federal-cigarette-l...
Some have opined that the FBI submitted the NYC case when Judge Orenstein was likely to get the case in order for it to be struck down, after which they go to their preferred playground: Congress.
In the event Congress passes a law forcing Apple to sign code they don't want to sign, we'll long have been hearing rumbles about Apple moving to Ireland or wherever by then.
(I don't know the answer and couldn't find it through a quick search - just pointing out what ridgeguy probably meant)
They are just worried that a health warning on all their products would affect their products. Just because they don't want the health warning to be true, doesn't mean they don't believe it is true.
I might believe, for example, that african americans are unreasonably targeted by law enforcement. But, even so, the government cannot compel me to attend a black lives matter protest.
Conveying to whom? I think this is where the argument falls apart. Yes, Apple signs updates as a way of conveying their veracity to users. But Apple is not being forced to send this update to anyone, much less vouch for its veracity.
Forcing Apple to publish this update to iPhones at-large would be compelled speech, in my opinion.
I'm not convinced by the argument that code-signing has some special status, and should be treated differently than other technical machinery. Let's do a little thought experiment. Let's say that Apple has a database with everyone's iPhone PIN in it. Except that this database is held in a machine, owned by Apple, with similar security as an iPhone 5C. It can release the PIN to the corresponding end-users, but only after successful authentication with their password. It has simple software checks to prevent Apple's employees from querying arbitrary people's PINs. To retrieve someone's PIN in response to a court order, Apple would need to update the code on this device to allow arbitrary PIN queries. This would require signing that update. Could the government compel them to do that?
Specifically-
>It makes no difference that the Apple’s edited code and signature will be communicated only to the government or internally. The compelled loyalty oath struck down in Speiser v. Randall, 357 U.S. 513, 515 (1958), required those veterans applying for benefits only to submit a form to the government. The loyalty was unconstitutional despite the fact that they were not required to make any type of public affirmation. Id. at 529
The U.S. Supreme Court in its review asked a more basic question: With the loyalty oath has California chosen a fair method to determine whether a tax exemption claimant is in fact someone to whom the criminal acts specified applies. In other words, though it is reasonable to deny a claimant a tax exemption if the claimant is involved in a criminal behavior, has the state arrived at a mechanism which demonstrates the criminal behavior?
The court ruled that because the state requires the claimant to show they are not advocating state overthrow and hence are not criminals within the applicable laws, the loyalty oath requirement to obtain the tax exemption is unconstitutional. The burden of proof for a criminal action rests on the state and not on the individual private citizen. In other cases, the Supreme Court has upheld the constitutionality of loyalty oaths requirements but those involved public officials and not private citizens.
If Wikipedia's summary is accurate, this case is not very convincing as precedent for the current Apple cases.
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HackerNews is rate limiting me, so here's my reply to the below:
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My point is that when they sign and publicly release updates, they are in fact engaging in speech (protected speech, I would emphatically argue). They are telling all of their users that this update is trustworthy and authentic.
When they comply with the current court orders, there is no such communication to a human being. Apple is not communicating anything to anyone. The government of course knows that the update isn't authentic, they're the ones compelling them to produce the update. They are hacking a machine, not engaging in speech.
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HackerNews is _also_ rate limiting me, so here's my reply to the below:
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Ah, okay. I understand your perspective but completely disagree. I think the act of writing the code/speech/doing the signing is what should be protected.
Apple does not own the phone, nor does it posses the data. In the case where apple owns the server and a customer's data resides on it the court may compel Apple to provide the state the evidence. Similarly, if Apple posessed the key to the device they would be compelled to provide it.
Apple has intentionally designed the system so that users are able to use their phone without storing the data or encryption key on Apple's servers to avoid that thought experiment because everyone agrees that that thought experiment leads to apple having to provide the keys/data.
Also, Apple doesn't have to update the code, they need to provide the PIN, how they do it is completely up to them. If they refuse a search warrant will be issued and the US Marshalls will seize the evidence.
>The Order is unconstitutional because it compels Apple to express itself in conflict with its stated beliefs. The Order forces Apple to say something it does not want to say and that it believes is “dangerous.” It then forces Apple to endorse code it does not want to endorse and thereby undermine the trust it has established in its digital signature. Each of these acts of compelled expression implicate the First Amendment independently, but together they are even more harmful, hindering Apple’s ability to communicate its desired messages to its users, and to the world, into the future.
In Universal City Studios, Inc. v. Corley (the case about the DVD decryption tool DeCSS), the Court of Appeals stated:
> Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer.
> we join the other courts that have concluded that computer code, and computer programs constructed from code, can merit First Amendment protection, although the scope of such protection remains to be determined.
But First Amendment protections are not unlimited. The court ruled in that case (and others) that:
> the scope of protection for speech generally depends on whether the restriction is imposed because of the content of the speech. Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available. A content-neutral restriction is permissible if it serves a substantial governmental interest, the interest is unrelated to the suppression of free expression, and the regulation is narrowly tailored, which "in this context requires . . . that the means chosen do not ‘burden substantially more speech than is necessary to further the government's legitimate interests.'"
To me, the EFF's argument is more perpendicular to this. They're not arguing about restriction / suppression of free speech, but rather noting that requiring Apple to create, disseminate, and sign an iOS version amounts to compelling speech.
From looking at case law (ianal), this looks murky. Commercial speech (which this would be) has a history of being subject to a different interpretation of free speech than individual.
The obvious example is cigarettes: the government compels private cigarette companies to include warnings on their product packaging for the good of the state.
The twist here is the all/nothing nature of certain encryption questions. Ultimately, we're going to get back to the Clipper Chip, Round 2 and whether private companies have the right to create a system even the government can't breach.
The FBI also could've ordered Apple to sign their house-made FBIOS for iPhone to crack the decryption, and Apple complying would've undermined the iOS security at least as must as the current scenario.
If someone chose to write a document in LaTeX should be considered different for constitutional purposes as compared to it being written on paper?
Programmers communicating ideas between each other inevitably use code to communicate. Why shouldn't this speech be protected?
If code truly was "just a blueprint", why do we care so much about how code is expressed? Why do we care how easily it is for one to comprehend and understand and in modern times emphasise that "code meant for humans to read, and only incidentally for computers to interpret"?
If a company, made up my the coordinated/chaotic movement of individuals, can be considered to express speech, why shouldn't a computer program, embodied with the spirit of the designers not be considered to express speech?
LaTeX is rather the mean by which the text is written, like if it was typed on paper or engraved in a wall. But the text being written would express an opinion.
Developers caring about code readability and style isn't different from engineers having strict guideline on how to express a design in a blue print, making tolerances explicit and the overall design clear to read. That is good craftsmanship but not the expression of an opinion.
The only limit I can think of is when the object itself might have a symbolic meaning. The blueprint of a swastika would be more than just a technical design.
I can also turn your argument on its head. What if I express in code the design of an AK47. It would be free speech. Then for the same reason than a musical score requires an instrument, a 3d model requires a 3d printer. Is the 3d printed fully working AK47 the expression of free speech?
Unfortunately the law disagrees.
> LaTeX is rather the mean by which the text is written, like if it was typed on paper or engraved in a wall. But the text being written would express an opinion.
Unfortunately case law disagrees (273 F.3d 446).
> Developers caring about code readability and style isn't different from engineers having strict guideline on how to express a design in a blue print.
See 176 F.3d 1132 and 192 F.3d 1308.
> Is the 3d printed fully working AK47 the expression of free speech?
No, but the program that produced 3d printed is considered speech (logical consequence of 60 USPQ2d at 1964-1965). This speech is of course subject to restrictions (492 U.S. 115, 126). Note that forms of speech that describe how to construct weapons may not be protected (see 461 F.2d 1119 for an example of explosive devices).
I can guess why the EFF is making it though. A decision vacating the order because of 1st amendment protections seems like it could also be a precedent against something like a version of CALEA expanded to include Apple, or even CALEA as it stands now.
Conversely should the first amendment not protect Apple from having to cryptographically sign their code, then arguably the government should also be able to force a person to cryptographically sign a message that runs contrary to their views. Which seems a pretty clear violation of the freedom of speech.
https://assets.documentcloud.org/documents/2746620/Apple-Ami... Airbnb Inc., Atlassian Pty. Ltd., Automattic Inc., CloudFlare Inc., eBay Inc., GitHub Inc., Kickstarter PBC, LinkedIn Corporation, Mapbox Inc., A Medium Corporation, Meetup Inc., Reddit Inc., Square Inc., Squarespace Inc., Twilio Inc., Twitter Inc., and Wickr Inc.
https://assets.documentcloud.org/documents/2746626/Apple-Ami... AT&T Mobility LLC
"At&t, we haven't always seen eye to eye on what constitutes a hidden fee, or applicable taxes, but thank you for doing this."
I am serious. No one would have been asking AT&T to do this, or at least surprised if they didn't. Thanks
Hopefully someone more knowledgeable can clarify if these cases to apply to Apple.
There seems to be a real desire in the US, on both sides of the political divide, to offload policy making to the courts (when it works in your favour, and despise it when it goes against you). Fetishization of a centuries-old document, that has long been surpassed by others in its ability to deliver effective government, is not how healthy societies should meet and face the challenges of their day.
The government shouldn't compel Apple to do this because it's wrong and it hurts America, not because it violates Apple's supposed constitutional rights.
There is a big difference between money and code, and more similarities between code and text or speech. People cannot generate money as freely or easily as they can generate text, speech, or code. Money is in limited supply, whereas speech / text / code are unlimited.
1) Production != Distribution. The distribution of speech / code / text is not in unlimited supply. Sure, I can go set up a soap box in front of city hall and have my say to anyone within earshot; but even then I'll have an advantage over the poor sucker that can't afford a soap box. Distribution of speech takes resources, which ultimately means money or time. This isn't new; in the late 18th century you'd need access to a printing press and delivery people to reach a sufficient number of people. Today you need additionally need broadcasting and computers. None of it free. And while the right to speech does not include the right to be heard, it does imply at the very least that you should be able to improve your chances of being heard.
2) We have the right to associate with other people and act cooperatively in common cause. We may pool our money to put our views on the same playing field as someone with greater resources, we can create an efficient division of labor to achieve our ends, and ultimately elect to leave should we find our views departing from the direction of the group. Why should people lose their individual rights simply because they cooperate? Why is it right to apply force to give preference to one kind of association of people over another?
Apple is correct in pursuing Constitutional rights, because at the end of the day it is the rights of individual shareholders acting in association and common cause. It is the rights of a person to not have their property put to use against their own interests: whether those are financial interests or interest in the functioning of society. Your only proper tool against them is to also make speech, including associating with other like minded individuals if you need to; it is not proper pr moral to coercively silence those associations you disfavor.
They don't. Individuals can continue to donate to campaigns. Corporations, on the other hand, should be limited in their ability to fund election campaigns, directly or indirectly. Their money is large and tends to be wielded by a small number of people. This subverts the original intention of our democratic republic.
That said, this thread is about Apple, not political spending.
Unions, for example wield much capital with a small number of people involved, are you suggesting that they, too should be limited? Major political parties are associations of people with significant financial resources once combined with few people making the real decisions. Should they be limited? Should non-profit organizations be able to take part in speech under the First Amendment?
This thread is about a company, Apple, invoking Constitutional rights. My comments are questioning how a relatively progressive leaning community will embrace a company having rights under Constitutional doctrine while also holding that companies should be denied access to rights under that same doctrine depending on progressive political preferences. This is inconsistent and inconsistent with the concept of "rights". I'm point out the contradiction, which is pertinent to the thread, and suggesting you choose: does the right to association exist? does the right of speech exist? are these rights mutually exclusive? Or do you really just want what you want and the definitions are fluid depending on how convenient they are to your viewpoint?
As for the original intention of our democratic republic... I'd be interest to know where you get your sense of original intention and enough to know that using force to prevent certain associations of individuals from free expression. I'll bet you'll find about as many different opinions about original intent as there were founders establishing that original intent. In essence such a statement is merely happy political rhetoric, devoid of real meaning, which is the stock and trade of most politicians.
What purpose does this statement have in a civil discussion?
> Individuals have the right of association
Yes, they do. I am specifically talking about corporations' ability to spend money on a political campaign. By ignoring this I have to believe you are not interested in engaging in thoughtful debate.
> Unions, for example wield much capital with a small number of people involved, are you suggesting that they, too should be limited? Major political parties are associations of people with significant financial resources once combined with few people making the real decisions. Should they be limited? Should non-profit organizations be able to take part in speech under the First Amendment?
No. There are already limits imposed upon individual spending towards an election. It is not a stretch to say there should be limits on corporate spending. Many countries have different kinds of limits on political campaign spending while still allowing people to associate freely.
> I'm point out the contradiction, which is pertinent to the thread, and suggesting you choose
You're free to do so. I feel it's off topic.
> Or do you really just want what you want and the definitions are fluid depending on how convenient they are to your viewpoint?
I have already answered your question. If my answer is not to your satisfaction, then that is your problem. I'm not going to confine my answers to a) I agree with sbuttgereit or b) I want what I want. That's absurd.
> As for the original intention of our democratic republic... I'd be interest to know where you get your sense of original intention
I get it from being raised in the American educational system. Given the number of grammatical mistakes in your last comment, I wonder where you got yours.
Specific performance of personal services is something courts are skittish about compelling but there are uncountable nuances. In particular I don't believe that the 13th has ever been held to apply to non-natural persons (eg corporations or trusts).
While some of these statutes—such as Florida’s sanctions for impudence—went beyond the mere punishing of breach of contract, all of them operated within a thick web of other laws that had the effect of suppressing competition between employers, further restricting the choices available to African-American workers. First, states passed anti-enticement laws that created penalties for those who tried to lure away employees with offers of better wages or working conditions. Second, emigrant agents, who recruited African-American workers in areas of low employment and transported them to jobs in distant, labor-starved markets, were subject to onerous licensing and taxation requirements.355 Georgia, for example, levied a tax of $500 on emigrant agents for each county in which they operated.356 Mississippi made it a crime to “entice . . . [any] negro” to leave the state.
The trouble is, if Apple doesn't raise it early on, it won't be considered, and we'll never really know.
My guess would be the US Govt would argue that it is not "benefitting" from the cooperation:
"Involuntary servitude or Involuntary slavery is a United States legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs." [1]
Or..that Apple is not a person. Or..that Apple is not being coerced.
Who knows :/
1. Wikipedia: https://en.wikipedia.org/wiki/Involuntary_servitude
I like the way that financial needs is considered coercion, but is just exempted. I wonder what the basis for the exemption is. How can it be justified compared to other forms of coercion (or the use of financial coercion in other areas) without resorting to special pleading?
1st - free speech
2nd - bear arms
4th - searches and seizures
5th - self incrimination
6th - cruel and unusual punishments
Some provisions in the original articles limit government action, though, for example, barring ex post facto laws and ensuring habeas corpus. Often these provisions are referenced in combination with other amendments, like due process, so they can become overshadowed in the public discussion.
* Because admin law deals with thorny authority issues, in turn because administrative agencies are a frankenstein that's partly legislative, partly executive, and partly judicial.
And just recently we've had a lot of people angrily pointing to Article II Section 2, which states that the President shall appoint Supreme Court justices, with the advice and consent of the Senate.
Edit: It's a common misconception that Citizens United allowed unlimited campaign contributions to candidates. That's not quite true--it allowed unlimited independent expenditures by corporations, but not unlimited contributions directly to candidates. The Supreme Court held in Buckley (1976) that the limit on direct contributions was a constitutional restriction on free speech because of the government's interest in "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office." That ruling still stands.
Edit 2: Citizens United didn't hold that corporations are people--that doctrine has been around for a century. It held that because corporations are people, they have the same speech rights as natural persons--namely, to make unlimited independent expenditures.
It's fairly clear throughout the ruling[1] that the Justices are not relying on corporate personhood, but the freedom of association argument. It is a media myth that the case was about 'corporations are people, too!'
The trouble is that it has the same effect, and creates the same appearance of corruption. Acausal trade is possible; a candidate and their PAC do not have to directly communicate to end up influencing each other's behaviour.
Note that the "is money speech" question is a total red herring. Citizens United was about a movie critical of Hilary Clinton. It was as core to the First Amendment as it gets. If anything Citizens United, a non-profit organization that exists for the purpose of promoting political messages, is far more entitled to speech rights than Apple, a for-profit company that has little political involvement.
Corrected.
Laws will always be around to make people do things they don't want to do. To twist this into some kind of speech issue is silly.
Before someone says outlawing a number won't ever happen, look up what a Free Speech Flag[1] is.
Does it come down to exclusively my reason? My reason might go uncommunicated, and if so, does someone else get to infer my reason?
Setting the state of physical switches being considered an expression of an opinion/idea (speech) also seems like a slippery slope toward all other physical actions being speech if "my reason" agrees.
Now, IANAL, but the act of writing the AACS encryption key to your RAM (I would assume) is protected (websites listing it place it in your RAM). But if you were to actually use that key in ways not allowed by the DMCA, then you're not protected.
> Setting the state of physical switches being considered an expression of an opinion/idea (speech) also seems like a slippery slope toward all other physical actions being speech if "my reason" agrees.
I can't imagine why setting those switches as an act of defiance would be illegal, but if the number "7" was the encryption key for a DVD, actually using those switches as the encryption key would be illegal.
Again, IANAL, and this is just speculation based on my understanding of the law
Here the creative work is software, and the signature is digital, but the principle is the same.
So that's a great freedom.
What you're saying is the other way around.
The talk a bit about it here, https://www.irs.gov/Tax-Professionals/The-Truth-About-Frivol...
And this is kind of similar but about the 5th Amendment. http://openjurist.org/775/f2d/1292/eh-mosher-v-internal-reve...
Or to put it another way, compelling speech is denying the right to send the null message.
Noone cares about the "null message".
One could posit that code-signing is solely Apple stating that a given sequence of bytes has not been subsequently modified. You might even view Apple's EULA - that includes "AS IS" clauses disclaiming warranty and fitness for purpose - as supporting this interpretation.
The court cannot compel me to sign just any document nor can they force me to write any document and then sign it. It would be absurd for me to have to be forced to write a document disavowing my believes and sign it, why should anyone be forced to write, let alone sign, software they don't agree with?