How much work can the government require you to do in order to comply with a warrant? There must be limits. When does it become involuntary servitude? Obviously not when we're talking about handing over something in your possession, but how much code can they make you write?
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
#42This 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.
Or you can look at it this way: Since we've gone down that road, let's squeeze as much good out of a bad decision as we can. By any means necessary.
I feel that the anger about the citizens united decision is misdirected.
People speak and act. The fact that they do so on behalf of a corporation is not of primary importance.
By saying that there's "corporate speech" and "personal speech", and that the latter is protected and the former not, is essentially the same reasoning that allows corporations to commit crimes with no personal crimes taking place.
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#43This makes me want to cry -- not the FBI overreach, but the "This, And Clickbait" sentence structure. Don't they teach how to write headlines any more in journalism school?
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#44While I would love to see this argument succeed, I doubt it will. Free speech already has limits on both the affirmative and negative sides. Shouting fire in a crowded theatre is not protected, nor is remaining silent if the government decides to label you an "enemy combatant". So I'm not optimistic that Apple's argument will succeed. The fear of drugs, pedophilia and terrorism seems to trump the First Amendment -- a…
You're mixing together quite a few different things. You can't use speech to incite a physical reaction/panic/riot. That crosses the line from simply communicating to taking action. And the right to not speak is protected by the 5th amendment. If you're an "enemy combatant," you're sitting in somewhere in Iraq or Afghanistan, and the 5th amendment doesn't apply because the person isn't a U.S. citizen and they're not on U.S. soil.
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#45So, 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…
Amusingly, you're allowed to use multiple, mutually exclusive defenses:
"Say you sue me because you say my dog bit you. Well, now this is my defense: My dog doesn't bite. And second, in the alternative, my dog was tied up that night. And third, I don't believe you really got bit. And fourth, I don't have a dog."
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#46How much work can the government require you to do in order to comply with a warrant? There must be limits. When does it become involuntary servitude? Obviously not when we're talking about handing over something in your possession, but how much code can they make you write?
Courts are entitled to reasonable cooperation from third parties to facilitate the administration of justice. Turning over documents, showing up for third-party depositions, testifying in front of a grand jury, drilling into a safe deposit box, etc. In Anglo-American law, that idea predates even the Constitution.
But at some point, cooperation goes beyond reasonable into the area of "unreasonable burden." As a practical matter, the test tends to be one of economics. How much does it cost to comply, and is that cost a reasonable one given the party being compelled?
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#47This 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.
Or you can look at it this way: Since we've gone down that road, let's squeeze as much good out of a bad decision as we can. By any means necessary.
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Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#48So, 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…
But Phone companies do actually do quite a lot to cooperate with their host countries TLA's - I think Apple is naive to use this defence as the FBI CIA and the NSA will just tell the judge but ATT does XYZ we are asking for a lot less.
Apple should have thought about this before they got into the phone Biz.
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#49And there is one more thing...
If Apple is finally compelled to write this backdoor code, and that backdoor code is used against a lawful customer, what happen if this customer then trie to sue Apple?
Will the DOJ be sued as well as they might be fully responsible? And could Apple sue DOJ as well for irremediable arm against his product safety?
Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work
#50I am not a lawyer, but how about a 13th amendment defense?