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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

#11

Post by davidgerard »

studentrob wrote: post #2

So, 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…

People routinely use multiple defenses, I'd be amazed if they didn't have a lot more than this.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#12

Post by bonyt »

johansch wrote: post #9

Don'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.

This cat and mouse game has gotten to the point where there are ad-blocker-blocker-blockers. That is, lists for your adblocker that disable adblock detection on websites.

For example, https://github.com/reek/anti-adblock-killer

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#13

Post by twoodfin »

This is a good reminder that "Corporations aren't people!" is something of a know-nothing argument, and also didn't suddenly spring into relevance with Citizens United.

Of course Apple can invoke the First Amendment just like you or I could to avoid compelled speech. They may win or lose that argument, but it's not going to be thrown out just because they're a corporation.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#14

Post by dmm »

pljns wrote: post #10
johansch wrote: post #9

Don'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 ;-)

Also when people say "Disable javascript" they don't mean go into Preferences and disable javascript. They probably mean install noscript which allows you to blacklist-by-default and enable js with a button click when needed.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#16

Post by exelius »

IMO the US intelligence apparatus likely already has Apple's publisher keys (we know they had Microsoft's at one point for Stuxnet, so this is entirely plausible). The FBI is far less advanced than the NSA/CIA on computer crime/crypto, likely to the point the NSA/CIA would not share information with them for fear of its existence being leaked through an overzealous investigation of a mass shooter who almost certainly never interacted with anyone in ISIS of any importance.

This is probably a gambit by the FBI to get access to this type of data for their other criminal investigations. If it is publicly known that the FBI has a way to break iPhones, they can lean on the NSA/CIA to provide more effective methods (without breaking cover of the existence of those methods.)

IMO a better tactic is the one the NSA has taken: let the industry build it, and we will hack it. This is just better tradecraft because it lulls targets into a false sense of security. Look at the engineering behind Stuxnet and the Equation Group viruses - these guys are obviously in another league from the FBI (and likely even from Apple). Given the gap in skills and mission, I don't blame them for not trusting the FBI.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#17

Post by exelius »

swehner wrote: post #15

This argument sounds so hokey. Similar to the non-exectation-of-privacy-when-using-tor argument, https://news.ycombinator.com/item?id=11166991 The US legal system appears as a special case

It has to be - our legal system is based on rule of law. You often see lawyers go after First Amendment defenses because the First Amendment is legally part of the constitution, and thus overrides any and all other laws. Of course, a judge has to agree with the argument - and considering when the Bill of Rights was written, that argument is likely going to be a bit roundabout given the progress we've made in ~250 years.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#18

Post by rrggrr »

exelius wrote: post #16

IMO the US intelligence apparatus likely already has Apple's publisher keys (we know they had Microsoft's at one point for Stuxnet, so this is entirely plausible). The FBI is far less advanced than the NSA/CIA on computer crime/crypto, likely to the point the NSA/CIA would not share information with them for fear of its existence being leaked through an overzealous investigation of a mass shooter who almost certainly…

As I listen to former NSA director Hayden advocate for end-to-end encryption, given the agency's mission, I'm inclined to agree with you.

http://www.bbc.co.uk/programmes/p03jtdn2

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#19

Post by seattlekiwi »

johansch wrote: post #9

Don'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.

Yeah, damn those journalists trying to make a living.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#20

Post by zamalek »

IceyEC wrote: post #5
jofo25 wrote: post #4

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? 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...

Indeed.

The ELI5 of free speech is: you can say whatever you want so long as it doesn't come at a cost to another legal entity (normally people, but not always).

One example that I found very demonstrative while trying to intuitively understand FOS was a very extreme one[1]. It's a difficult but worthwhile read. The best way to understand FOS is to read up[2] on how it has been applied.

[1]: https://en.wikipedia.org/wiki/National_Socialist_Party_of_Am... [2]: https://en.wikipedia.org/wiki/Category:United_States_Free_Sp...

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