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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

#71

Post by BlackFly »

harryh wrote: post #61
BlackFly wrote: post #58

Earlier quoted context omitted.

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.

No developers are being forced to do anything. Any Apple employee who feels like it is more than welcome to quit. Otherwise, they're required to do the job their employer asks them to do which, it turns out, might include modifying iOS on a court order.

I'm not sure if you are being disingenuous with me or you just haven't thought out your argument.

You are essentially claiming that a person's rights aren't violated because they still have a choice between expressing a concept in code or losing their livelihood. This is analagous to saying that a person's fifth amendment rights are not violated because they have a choice between answering questions and going to jail. This is the precise definition of coercion, which is exactly what the US government is forbidden to do except in very limited circumstances.

Furthermore, their employer is not the government so the ultimatum does not exist without coercion. Their manager is a human being who is forced to give them orders or fire them, which is again a first amendment violation. They get their orders from their manager, who was coerced, etc.

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

#72

Post by khedoros »

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…

Every safe would have a replaceable locking/fire-setting mechanism with a part, machined to uniquely fit that particular safe, and stamped with the builder's guarantee of security.

The important points are these: the mechanism-replacement machine wouldn't be limited to that one safe, and the technician won't install it unless Apple Safes said that it had the same level of security after the alteration. This isn't cracking one safe; it's developing (easily redistributable) instructions for cracking all the safes of that model and marking the modified mechanisms as unmodified, against their will.

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

#73

Post by harryh »

BlackFly wrote: post #71
harryh wrote: post #61

Earlier quoted context omitted.

No developers are being forced to do anything. Any Apple employee who feels like it is more than welcome to quit. Otherwise, they're required to do the job their employer asks them to do which, it turns out, might include modifying iOS on a court order.

I'm not sure if you are being disingenuous with me or you just haven't thought out your argument. You are essentially claiming that a person's rights aren't violated because they still have a choice between expressing a concept in code or losing their livelihood. This is analagous to saying that a person's fifth amendment rights are not violated because they have a choice between answering questions and going to jail…

> You are essentially claiming that a person's rights aren't violated because they still have a choice between expressing a concept in code

> or losing their livelihood.

I write code for a living(1). I'm pretty sure that if I walked in to work tomorrow and told my boss I wasn't going to write any more code then he would tell me pretty soon thereafter that was fine but he was going to stop paying me to come to work every day.

That's not coercion. That's what a job is.

It's interesting, by the way, that you bring up the 5th amendment. You have it exactly backwards. The government has wide latitude to compel testimony at a trial. If you witness a crime, for example, you aren't allowed to refuse to testify about what you saw because of your first amendment rights. The 5th amendment outlines one of the very few exceptions to the government's ability to compel speech in the context of criminal investigations.

1. Strictly speaking I'm more of a manager these days. But, for the purposes of clarity, let's pretend I'm talking about the "me" from 5 years ago.

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

#74

Post by Zigurd »

jayess wrote: post #52
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.

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

Before the Citizens United v. FEC decision, did the news media not have free speech?

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

#75

Post by rrauenza »

Zigurd wrote: post #54
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.

...I still don't understand why not:

https://en.m.wikipedia.org/wiki/Key_disclosure_law#United_St...

I have also been wondering if this is the wrong iPhone to take a stand on since it is owned by the employer, not the dead terrorist -- and the employer wants it unlocked.

But I guess this is more about forcing a company to manufacture an ad hoc backdoor than protecting the privacy of the owner of the device (my understanding is that if your employer owns the device, there is no privacy.)

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

#76

Post by CocaKoala »

jasonlaramburu wrote: post #68
CocaKoala wrote: post #35

Earlier quoted context omitted.

How can the FBI verify that the data they get from Apple is the same data that was on the phone?

They would have to trust that Apple is acting in good faith. I can't see any incentive or reason for Apple to falsify the data. They already provided the most recent iCloud backup in good faith.

Let's say they try to convict somebody based on data from the phone.

"Your honor, it's a known fact that my client has had a long-standing adversarial relationship with Jack Smith, an employee at Apple. Jack Smith's motive and opportunity to frame my client by falsifying data in this case provides clear reasonable doubt of my client's guilt."

Additionally, let's say they destroy the phone. How can you establish that the evidence hasn't been tampered with after the fact? It's not like you can go pull the files again, the phone has been destroyed. So now you're not only trusting that a) Apple provided the right data, you're trusting that b) the FBI hasn't tampered with the data to frame somebody.

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

#77

Post by jasonlaramburu »

CocaKoala wrote: post #76
jasonlaramburu wrote: post #68

Earlier quoted context omitted.

They would have to trust that Apple is acting in good faith. I can't see any incentive or reason for Apple to falsify the data. They already provided the most recent iCloud backup in good faith.

Let's say they try to convict somebody based on data from the phone. "Your honor, it's a known fact that my client has had a long-standing adversarial relationship with Jack Smith, an employee at Apple. Jack Smith's motive and opportunity to frame my client by falsifying data in this case provides clear reasonable doubt of my client's guilt." Additionally, let's say they destroy the phone. How can you establish that…

The suspects in this case are dead.

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

#78

Post by twoodfin »

Zigurd wrote: post #74
jayess wrote: post #52

Earlier quoted context omitted.

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

Before the Citizens United v. FEC decision, did the news media not have free speech?

They did, because "corporations are people" was not something Citizens United invented.

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

#79

Post by CocaKoala »

jasonlaramburu wrote: post #77
CocaKoala wrote: post #76

Earlier quoted context omitted.

Let's say they try to convict somebody based on data from the phone. "Your honor, it's a known fact that my client has had a long-standing adversarial relationship with Jack Smith, an employee at Apple. Jack Smith's motive and opportunity to frame my client by falsifying data in this case provides clear reasonable doubt of my client's guilt." Additionally, let's say they destroy the phone. How can you establish that…

The suspects in this case are dead.

I was addressing the hypothetical case of the FBI attempting to prosecute somebody based on the data recovered from the phone.

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

#80

Post by frandroid »

spacecowboy_lon wrote: post #48
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…

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.

Because another company agrees to say something they're being asked to doesn't diminish your right not to say something you don't want to say.
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