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Why Forcing Apple to Write and Sign Code Violates the First Amendment (eff.org)
249 points by morninj on Mar 4, 2016 | hide | past | web | favorite | 109 comments



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.


The courts have already ruled that code is speech.

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.'"


> Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available.

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.


It definitely focuses on the digital signature, but the EFF is also arguing the expression of Apple's beliefs within the operating system should be protected by the first amendment.

>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.


The focus on Apple writing the OS is something I've wondered about the whole debate, as the core of the issue was never about writing the code, but signing it.

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.


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.


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

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.


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)


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.


The warning is at least clearly attributed to the Surgeon General, not the manufacturer, which goes to the EFF argument. The government could compel Apple to produce an update 'signed by the director of the FBI', but one signed by Apple is a different matter. The fact that an iPhone won't install an update signed by anyone else is a separate problem.


The warning is for the danger smoking has for your health. I'm sure cigarette companies don't believe cigarettes are healthy, or at the very least have no negative effects on your heath.

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.


What someone believes to be true is not a relevant consideration in first amendment protection.

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.


They only have to do so if they want to sell cigarettes, which is not a constitutional right.


Selling iPhones isn't a constitutional right either.


Congress could make that illegal if they wanted. They could e.g. make it illegal to sell a device that doesn't accept code updates signed with a particular government key. But they can't do it retroactively.


I am not a lawyer, but it seems like the EFF's argument still reduces to "the government cannot dictate the content of code" in cases where the code is signed, which a lot of modern code is. It's an interesting argument, but I think it might reach a little too far to be successful.

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.


It's not quite the same. The government could (conceivably) dictate the content of the code, but the argument then goes that signing the code conveys the message that Apple has 'approved' of the code, similar to signing your name on a particular declaration.

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.


Is code-signing expressive if it's compelled?


From my understanding of the EFF's argument, yes - and they are arguing that the government cannot compel Apple to express themselves in a manner contrary to their views (and thus they can't compel code signing).


I'm sort of asking if EFF's argument is legally sound. Is code-signing expressive in this case, or merely functional? Is it rather Apple's intent to communicate endorsement that transforms code-signing into an expressive act, that when it's compelled, it's not expressive?


Even if they preface their action with "is it not our intent to endorse this, we're only doing it to make it function" they know damn well that all the other iPhones in the world, to which this speech isn't intended to be heard by but could potentially be heard by later, will infer/interpret it as an endorsement. Knowledge of an obvious likelihood of a particular inference despite claimed lack of intent is a form of intent.


Though code should be rather "blue print" rather than speech. You don't express an opinion with code. You express a technical design.


A recpie is no less a form of speech for it's need of the use an oven. A muscal score is no less speech because of it's need of use of an instrument. Mathematical expressions are considered speech. Why should code be any different just because it requires use of a comptuer?

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?


I am not sure a musical score alone expresses any opinion. The song that comes with it might.

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?


> I am not sure a musical score alone expresses any opinion. The song that comes with it might.

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).


"Expressing an opinion" is by no means a necessary condition of free speech. Certain types of speech, particularly political speech, have a greater degree of protection than commercial speech, for example. But they're all covered under the First Amendment.


>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.

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?


You should read the amicus if you actually want those questions answered.

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


An oath of political loyalty, kept as government record, as a requirement for receiving government services, is very different than being forced to use technical machinery to hack a particular device for which the government has established its right to access.


The specifics of either case don't matter in what EFF is saying there. That is the point of case law. The court ruled that the oath was illegally compelled speech, which means that speech can remain protected (by the 1st amend.) even when it isn't public speech.


I haven't read the case that the EFF is citing, but here's Wikipedia's summary of the legal reasoning, which is what precedent consists of:

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.


You stated "Apple is not being forced to send this update to anyone" and stated that it would be compelled speech if they had to publish it "at-large". Which raises the question: is compelled speech, made only to the gov't, illegal? That case shows that compelled nonpublic speech can be unconstitutional. Do you disagree?

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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.


That thought experiment is an entirely different case, and yes Apple regularly provides iCloud backups to law enforcement.

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.


Attacking the EFF's argument more directly, every court order sent to Apple in the past compelled actual speech in forcing Apple to tell an employee to cooperate with the order, regardless of whether Apple agreed with that speech. The courts have put common-sense limits on free speech (e.g., Oliver Wendell Holmes's "falsely shouting fire in a theatre"), and this looks like an obvious case of such a limit.


Other amicus briefs from today:

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, 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


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


More frenemies than partners


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.)


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.


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.


I have no difficulty opposing Citizens United and supporting Apple's position.

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.


There are at least two problems with your position.

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.


> Why should people lose their individual rights simply because they cooperate?

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.


Your statement makes no sense. Individuals have the right of association. They lose that right as soon as the vehicle of association is a corporation under your view... unless your saying that association and speech rights are mutually exclusive.

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.


> Your statement makes no sense

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.


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


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


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.


>under some form of coercion other than the worker's financial needs.

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?


Hmm. It's been held up in court that companies are people in regards to other laws, so it's an interesting argument.


It also seems that some of the government's ideas (like the old Clipper Chip) would violate the third amendment, as they are forcing you to house a government agent in your software/hardware.


Courts have almost never applied the Thirteenth Amendment to claims by people not descended from slaves.


That's simply not true. See http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=10... for some examples.

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).


Did you read the article? Here's an excerpt from the discussion about the Peonage Cases:

    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.
Courts apply the Thirteenth Amendment to cases involving the "badges and incidents of slavery." Usually, that refers to some form of systematic oppression of African Americans. It definitely doesn't include forcing Apple to write and sign code.


Application has been erratic. As I said AFAIK it's never been applied to a non-natural person, and wouldn't even really make sense in that context. But it's not exactly a dead letter, and it has had application to cases not involving blacks.


The question has never been directly before the Court. To my knowledge, the Supreme Court has never said the 13th Amendment "doesn't apply to any situation except forced individual slavery" or the like.

The trouble is, if Apple doesn't raise it early on, it won't be considered, and we'll never really know.


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.


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.


The commerce clause can still be a contentious issue.

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.


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


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.


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...). 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_...


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


> 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.

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.


It is contradictory, to the extent that you believe Citizens United was wrong because corporations don't have First Amendment Rights.

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.


It wasn't the producing or broadcasting of the movie that was prohibited under the previous campaign finance laws, it was the paying for ads to promote it and the paying to have it aired. The court ruled that Congress could not ban paying for these services because it violated their free speech. So yes, they didn't rule that "money is speech" but they did rule that using money is speech.


> but they did rule that using money [to speak] is speech.

Corrected.


Not necessarily. Obviously this argument requires a corporate right to First Amendment protections. But that doesn't imply that corporations (or anyone) should be able to make unlimited expenditures on electioneering. This brief assumes that corporations are (in some sense) people, but not that they are entitled to put political ads on TV.


Restricting speech and compelling speech are separate concepts, so I don't think it's inherently contradictory.


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.


An analogy is the government forcing you to draw something objectionable, and then sign your name to it. That's clearly unconstitutional compelled speech, plus the mere existence of an obscene work signed by you could seriously harm your reputation as an artist.

Here the creative work is software, and the signature is digital, but the principle is the same.


Exactly, that's not a free speech issue, and talking like that is cynical.


What are you talking about? Compelling an artist to create and sign a work is absolutely a free speech issue.


Here is how one commonly goes about defining free speech, "Freedom of speech is the right to communicate one's opinions and ideas without fear of government retaliation or censorship."

So that's a great freedom.

What you're saying is the other way around.


FWIU, _compelled speech_ is unconstitutional too.


How do you distinguish this case from the obligation to sign tax returns? (I think that is 26 U.S. Code § 6061, https://www.law.cornell.edu/uscode/text/26/6061)

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...


Could Apple then invalidate what it was previously coerced to say AND not expect government retaliation or censorship?


I'm not sure if you are trolling or not, but that is very obviously a free speech issue.


Disagreeing. Nothing "very obvious" about it.


If you can compel speech, then you can effectively censor people by forcing them to disavow their messages, and then burying their signal in compelled noise.

Or to put it another way, compelling speech is denying the right to send the null message.


Yes, that is not a useful way of looking at the issue.

Noone cares about the "null message".


I disagree. The case they're making here is really interesting: a software signature is a statement in support of the software object, and compelling the signature is essentially compelling Apple to vouch for something they don't believe in.


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


Speaking!


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?


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


> 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.


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


When we refer to 1st amendment free "speech," we are not referring to the physical act of speaking words, but to the general act of expression


And why wouldn't it? Morse code and braille don't look like English either.


The courts have ruled consistently that software code is speech


I agree with this. The company has many other ways of expressing their beliefs, but calling the code specifically a form of speech feels like a stretch. Overall I am on Apple's side of this. But while this article makes an interesting argument, I just don't think I buy it.


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?


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


Hopefully a software fix doesn't compel a new ideology of speech: just a better explained form of what they've already said.


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.


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?


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


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


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


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.


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


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.


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!


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


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


Yes, it would be very much worse. And I'm not advocating that the gov't take this course of action. I'm just surprised that they didn't. Surely it would have been easier to subpoena a number from Apple than it is to get into a 1st Amendment battle over compelled speech.


They don't have the private key, hence the debate.




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