
Why Forcing Apple to Write and Sign Code Violates the First Amendment - morninj
https://www.eff.org/deeplinks/2016/03/deep-dive-why-forcing-apple-write-and-sign-code-violates-first-amendment
======
rayiner
Note that the focus of the EFF's argument is not on writing the code, but on
expressive act of signing the code. Part I of its argument establishes that
the government cannot compel a company to _convey a message_ it disagrees
with. Part II argues that the act of conveying trust in code by signing it is
still expression _even though it involves code_.

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.

~~~
ridgeguy
re Part I: isn't there precedent for this in, for one example, the warning
labels that cigarette makers are required to place on their products? I doubt
those companies agreed with the message, but they were forced to add it to
their product packaging.

~~~
rhizome
Congress can do that. Cigarettes are a special case with their own law and
everything:

[https://www.ftc.gov/enforcement/statutes/federal-
cigarette-l...](https://www.ftc.gov/enforcement/statutes/federal-cigarette-
labeling-advertising-act-1966)

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.

~~~
zodiac
Clearly the question then would be, why is the Federal Cigarette Labeling and
Advertising Act of 1966 not unconstitutional, since it "compel a company to
convey a message it disagrees with"?

(I don't know the answer and couldn't find it through a quick search - just
pointing out what ridgeguy probably meant)

~~~
makomk
Because that's a form of commercial speech and only has very limited
protections under the First Amendment. Same reason that deceptive
advertisements aren't protected.

------
sigmar
Other amicus briefs from today:

[https://assets.documentcloud.org/documents/2746620/Apple-
Ami...](https://assets.documentcloud.org/documents/2746620/Apple-Amicus-Brief-
by-Airbnb-EBay-Twitter-and.pdf) 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...](https://assets.documentcloud.org/documents/2746626/Apple-Amicus-Brief-
From-AT-amp-T.pdf) AT&T Mobility LLC

~~~
vonklaus
AT & T, coming in publicly in favor of congressional oversite. That is a big
deal. I respect them for doing this, and will taper the cynical part of my
brain, and simply say:

"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

~~~
whatusername
If you want to indulge your synicism -- remember that apple is a _big_ partner
of AT&T.

~~~
spacecowboy_lon
More frenemies than partners

------
sbuttgereit
Not worrying about what the law actually is for a moment, what I'm a bit
curious about is how some here likely support the invocation of rights under
the First Amendment for Apple in this case, yet will maintain that First
Amendment rights for companies shouldn't be recognized when other issues are
at stake, such as a question of politics is involved (thinking the Citizens
United case specifically). How does one resolve that contradiction in
constitutional interpretation? (Yes I do know that historically constitutional
rights have had partial applicability to companies recognized by courts... But
even so that seems contradictory to the proper definition of a "right"
guaranteed by the Constitution: either they apply or not.)

~~~
nindalf
That and the packaging laws on cigarettes, which is certainly compelled
speech. I think its a little difficult opposing Citizen's United and
supporting packaging laws while still arguing that Apple deserves First
Amendment rights and should not be compelled to digitally sign the backdoor.

Hopefully someone more knowledgeable can clarify if these cases to apply to
Apple.

~~~
redthrowaway
CU was my first thought, too. I don't like arguing this case as a violation of
Apple's 1A rights, which I don't believe exist.

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.

------
otterley
I wonder why they didn't argue that it also violates the 13th Amendment's
prohibition against involuntary servitude.

~~~
chrisabrams
Great question! I have wondered the same thing.

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](https://en.wikipedia.org/wiki/Involuntary_servitude)

~~~
justinjlynn
The government would most certainly be benefiting from such cooperation. I
would imagine that the data so provided would save the government from doing
much investigation. This is a clear demonstrable benefit. If the data is not
acquirable by other means, then the cost of acquisition is infinite and the
benefit is as well. Of course, this depends on the definition benefit much
like Nixon's definition of legality.

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cm2187
Sort of off topic but I wonder why the most cited articles in the constitution
are all amendments

    
    
      1st - free speech
      2nd - bear arms
      4th - searches and seizures
      5th - self incrimination
      6th - cruel and unusual punishments
    

I almost never hear any of the original articles being cited in any heated
debate.

~~~
brownbat
Most of the original articles are logistical, and arise most frequently in
administrative law,* which tends to be more technical and not make as many
headlines.

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.

------
acgourley
Would it be contradictory to be OK with this argument but against the logic of
the Citizens United ruling?

~~~
morninj
No, I don't think it's contradictory. Money can be speech, but sometimes there
are good reasons to restrict free speech. One reason is that money can corrupt
the democratic process--which is why the Supreme Court hasn't struck down
limits on direct contributions to candidates (but god help us if they do).

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.

~~~
JoshTriplett
I find it unfortunate that _Citizens United_ extended the concept of corporate
legal personhood espoused by _Santa Clara County v. Southern Pacific Railroad_
([https://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern...](https://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern_Pacific_Railroad_Co.)).
I think instead it makes sense to say that corporations are _made up of_
people, and it doesn't make sense to grant a right to individual people but
deny them the ability to act as a group in exercising that right. It would
have sufficed to rule based on freedom of association:
[https://en.wikipedia.org/wiki/Freedom_of_association#United_...](https://en.wikipedia.org/wiki/Freedom_of_association#United_States_Constitution)

~~~
GauntletWizard
That is precisely what the court ordered. To wit, "If the First Amendment has
any force, it prohibits Congress from fining or jailing citizens, or
associations of citizens, for simply engaging in political speech. If the
antidistortion rationale were to be accepted, however, it would permit
Government to ban political speech simply because the speaker is an
association that has taken on the corporate form. "

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!'

[1]
[http://www.supremecourt.gov/opinions/09pdf/08-205.pdf](http://www.supremecourt.gov/opinions/09pdf/08-205.pdf)

------
swehner
I submit this is cynical. To call this speech is just misleading.

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.

~~~
morninj
If writing code isn't speech, what is it?

~~~
hunter2_
Is it only speech/writing because high level languages are like English? Are
low level languages, down to the point of setting individual bits, also
speech/writing? Is flipping a bank of 8 single pole single throw switches
speech/writing?

~~~
colejohnson66
If your reason for flipping those switches is to express an idea, then yes. If
for some reason the number 7 was outlawed and you decided to flip those
switches to 00000111, you'd be protected by the First Amendment.

Before someone says outlawing a number won't ever happen, look up what a Free
Speech Flag[1] is.

[1]:
[https://en.wikipedia.org/wiki/Free_Speech_Flag](https://en.wikipedia.org/wiki/Free_Speech_Flag)

~~~
hunter2_
> your reason

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.

~~~
colejohnson66
That's why we have the courts to rule exactly what is and isn't protected
(versus having a big long list needing constant revision [like the DMCA
exception list]). Granted, flipping switches isn't the best example, but if
Free Speech Flags are protected, I can't see why flipping a set of switches is
any different.

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

------
ReedJessen
Doesn't the government force recalls of products like fault car accelerator
pedals? Presumably theses are software fixes which the companies are compelled
to write?

~~~
fowl2
well there there is also the option of 'just' refunding the cars

------
throwaway173197
Counterpoint: Since the government can compel you to testify about facts
(without self-incrimination), compelled code-signing may not be a 1st
amendment violation.

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.

~~~
jimktrains2
A signature on a document is not simply a statement that you read the
document, but also that you agree with and stand behind the contents and as an
author's signature it is a statement that you want to be associated with said
document; a digital signature should be treated the same way.

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?

------
scelerat
This story reminded me I had allowed my EFF membership to lapse. Fixed.

------
daodedickinson
Why can we force automobile manufacturers to include seat belts and air bags?

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hoi
Just wondering, what would be the legal case if this was not the USA?

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pklausler
The gov't doesn't need to get Apple to write or sign anything; they just have
to subpoena the private key and the source code.

~~~
iopq
That would be MUCH worse, since it allows the government potentially hack
anyone's iPhone.

~~~
vectorjohn
But when anyone brings up that if Apple were to do it they could make a
version that _doesn 't_ have the possibility of hacking anyone's phone, people
seem to think that isn't possible. Clearly it is.

~~~
iopq
Yes, and I totally trust the government wouldn't modify that version to have
it work on everyone's iPhone. Because they'd never just remove that
restriction by editing the program, that would be wrong!

~~~
vectorjohn
That would be impossible. The code must be signed, so it cannot be tampered
with. That's why they need Apple's help.

~~~
iopq
What's the guarantee that signed code won't be used on other iPhones?

