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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

#51

Post by lisper »

rayiner wrote: post #44
lisper wrote: post #38

While 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…

> the right to not speak is protected by the 5th amendment

No, it's not. The right not to incriminate yourself is protected by the 5th amendment. People are subpoenaed and forced to speak all the time. That's why Apple isn't making that argument. (They do have a 5th amendment argument too, but it's not based on self-incrimination.)

> If you're an "enemy combatant," you're sitting in somewhere in Iraq or Afghanistan

It has never been put to the test (because the scenario is pretty unrealistic) but do you really think that if a U.S. citizen on U.S. soil made a credible claim to have planted a nuke somewhere in NYC, that the government would not mount an argument that the Constitution allows them to waterboard that person to get them to reveal the location of the bomb? And that they might win?

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

#52

Post by jayess »

Zigurd wrote: post #27
twoodfin wrote: post #13

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.

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.

So media companies (corporations) shouldn't have freedom of speech?

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

#53

Post by forrestthewoods »

dankohn1 wrote: post #45
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…

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." https://en.wikipedia.org/wiki/Alternative_pleading

I had no idea. Thanks for sharing.

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

#54

Post by Zigurd »

rrauenza wrote: post #37

What prevents the FBI from issuing a subpoena for the signing keys and patching the existing binary?

There is no law enabling them to do that. However, once the all writs is used to compel code creation, it surely will not stop there.

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

#55

Post by [deleted] »

jeffdavis wrote: post #42
Zigurd wrote: post #27

Earlier quoted context omitted.

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.

[deleted]

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

#56

Post by rm_-rf_slash »

zimbatm wrote: post #39

What if Apple was in the business of safes and built a really strong to crack safe. There would be 10 attempts to open it or all the content would catch on fire. Is it unheard of that the government would seek the help of that kind of company in similar cases ? The argument that the newly-developed technique could be stolen by unwanted adversaries is the same. In both cases the government has to get hold of the physi…

No safe contains as much value to a person as a phone does. A phone contains everything. Everything. All your texts, all your browsing data, all your apps and the things you record in them, safe from the world behind a passcode.

To apply your argument, your safe is a Narnia portal that brings you access to every facet of someone's life, all to track down the contents that fit on a few pieces of paper.

Equating smartphones with physical safes is ridiculous.

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

#57

Post by exelius »

lawnchair_larry wrote: post #30
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…

You have some details mixed up there. Stuxnet did not use any domestic certificates. You're likely thinking of Flame, which still did not involve stealing keys or certificates, but rather exploiting a flaw relating to how certificates were issued to the general public.

Well, just remember that when you're dealing with clandestine agencies like CIA/NSA, they can probably either turn or place an asset in one of Apple's security teams and get access that way. Their evidence collection methods don't have to hold up in court.

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

#58

Post by BlackFly »

twoodfin wrote: post #13

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.

The first amendment argument can be made notwithstanding that corporations are not people. Forcing developers to implement and sign code goes against their first amendment rights.

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

#59

Post by mspecter »

lawnchair_larry wrote: post #30
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…

You have some details mixed up there. Stuxnet did not use any domestic certificates. You're likely thinking of Flame, which still did not involve stealing keys or certificates, but rather exploiting a flaw relating to how certificates were issued to the general public.

Yeah, stuxnet used a stolen signing cert from Realtek.

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

#60

Post by awqrre »

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…

Seems like the NSA does trust other law enforcement agencies at least to a certain level, with the use of parallel construction for illegally obtained evidence [1].

1. https://en.wikipedia.org/wiki/Parallel_construction

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