Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
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Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#2So, signing the code constitutes Apple saying this code is safe to run. But Apple doesn't think this code is safe to run. The argument will be that forcing them to sign the modified code is compelled speech. Interesting.
Is there any reason Apple can't use more than one argument in its defense?
According to USA vs. New York Telephone, "unreasonable burdens may not be imposed". I think Apple will bear quite a burden if it must force its engineers to implement this code. It will be telling them to reverse their work and go against company values. Also, the public is going to know the outcome of this case. If Apple doesn't come out cheering, we will all know its security features have been weakened, which will impact sales.
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#3So, signing the code constitutes Apple saying this code is safe to run. But Apple doesn't think this code is safe to run. The argument will be that forcing them to sign the modified code is compelled speech. Interesting. Is there any reason Apple can't use more than one argument in its defense? According to USA vs. New York Telephone, "unreasonable burdens may not be imposed". I think Apple will bear quite a burden i…
>Is there any reason Apple can't use more than one argument in its defense?
No.
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#4If code is speech, does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment? It seems difficult to parse that someone could write some code that for example, to break someone's pacemaker or life support machine and that person would be protected by free speech.
Maybe in that scenario, it would be the author who writes that code who would be protected but the person who executes the deadly code who is breaking the law?
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#5If code is speech, does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment? It seems difficult to parse that someone could write some code that for example, to break someone's pacemaker or life support machine and that person would be protected by free speech. Maybe in that scenario, it would be the author who writes that code who would be prot…
Not all speech is protected:
Holmes's famous phrase means that not all forms of speech are protected. For example, the First Amendment does not protect obscenity, child pornography, true threats, fighting words, incitement to imminent lawless action, criminal solicitation or defamation.[1]
[1]: http://1forall.us/teach-the-first-amendment/the-first-amendm...
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#6If code is speech, does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment? It seems difficult to parse that someone could write some code that for example, to break someone's pacemaker or life support machine and that person would be protected by free speech. Maybe in that scenario, it would be the author who writes that code who would be prot…
> If code is speech, does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment?
Not a lawyer, but I don't think so. You can't just say anything you want, either (yelling "fire!" in a crowded room, slander, inciting violence, etc).
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#7If code is speech, does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment? It seems difficult to parse that someone could write some code that for example, to break someone's pacemaker or life support machine and that person would be protected by free speech. Maybe in that scenario, it would be the author who writes that code who would be prot…
I'm not sure that's what is being argued here. I think it's more like if the govt compelled someone to write software to break someone's pacemaker or life support machine, then certify under their name that the software was safe to use.
Of course in this case the person is a corporation; if this defense works I wonder if there will be calls for renewed scrutiny of corporate personhood. This may have been discussed in the article, but I was unable to read very far because I have an ad blocker turned on.
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#8If code is speech, does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment? It seems difficult to parse that someone could write some code that for example, to break someone's pacemaker or life support machine and that person would be protected by free speech. Maybe in that scenario, it would be the author who writes that code who would be prot…
> If code is speech, does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment? Not a lawyer, but I don't think so. You can't just say anything you want, either (yelling "fire!" in a crowded room, slander, inciting violence, etc).
> You can't just say anything you want, either (yelling "fire!" in a crowded room ...
This is simply not true. Read Trope Two here [0] for a brief overview (although the entire essay is well worth reading), and [1] for a in-depth analysis of the trope.
[0] https://popehat.com/2015/05/19/how-to-spot-and-critique-cens...
[1] https://popehat.com/2012/09/19/three-generations-of-a-hackne...
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#9Don't click Wired links if you don't want to pay them. They have an ad-blocker-blocker that kicks in after you have read half of the article or so - and you get no clear warning before this.
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#10Don't click Wired links if you don't want to pay them. They have an ad-blocker-blocker that kicks in after you have read half of the article or so - and you get no clear warning before this.
Disable Javascript ;-)