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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

#81

Post by nikdaheratik »

harryh wrote: post #73
BlackFly wrote: post #71

Earlier quoted context omitted.

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 ev…

That example of you and your boss is not the same as the government forcing you to do/say something. The end result is unemployment in your case, and it is your choice since the decision to take the job in the first place was voluntary. In the case of the government compelling you to work and/or write code, the result of non-compliance is fines, imprisonment for contempt, etc.

And assuming the process that led to the writ being issued in court was fair and followed correctly, you wouldn't be able to just walk away from it. Which is why the first amendment and other laws matter for the government and not for your employer-employee example.

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

#82

Post by nikdaheratik »

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, but yes writing code is protected, it is executing that code for nefarious purposes that is not. Just like writing down invention designs for a killer robot is protected, but building that robot and using it on people is not.

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

#83

Post by spacecowboy_lon »

frandroid wrote: post #80
spacecowboy_lon wrote: post #48

Earlier quoted context omitted.

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.

That's not the point here Apple are trying to claim this requestby the FBI would be burdensome if ATT etc do far more then that defense is flawed and will not work.

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

#84

Post by harryh »

nikdaheratik wrote: post #81
harryh wrote: post #73

Earlier quoted context omitted.

> 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 ev…

That example of you and your boss is not the same as the government forcing you to do/say something. The end result is unemployment in your case, and it is your choice since the decision to take the job in the first place was voluntary. In the case of the government compelling you to work and/or write code, the result of non-compliance is fines, imprisonment for contempt, etc. And assuming the process that led to the…

No, you're wrong about fines, imprisonment for contempt, etc.

That might be true for senior officials at Apple (Tim Cook, etc) but definitely not for rank and file employees. Any of them that are asked to implement GovOS (to use Apple's shorthand for the proposed software) could surely quit instead of doing the work.

To be honest, they wouldn't even have to quit. I'm sure there are plenty of people at Apple qualified to do the work. If some of them have moral issues I'm sure they can go work on other things. Apple will have no problem finding a few folks to comment out a few lines of code and recompile the OS.

You're basically repeating FUD spread by Apple and others to make the situation seem worse than it is. Normally this kind of FUD spreading is reviled by the hacker community.

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

#85

Post by TACIXAT »

exelius wrote: post #57
lawnchair_larry wrote: post #30

Earlier quoted context omitted.

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.

Well, you should edit your post so it is accurate.

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

#86

Post by exelius »

swehner wrote: post #70
exelius wrote: post #17

Earlier quoted context omitted.

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 yea…

Not sure what you're saying, what has to be?

Any modern argument based on laws written 250 years ago is going to necessarily be roundabout. If the problem was straightforward, there would probably be established case law addressing it.

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

#87

Post by jonlucc »

simoncion wrote: post #8
jonlucc wrote: post #6

Earlier quoted context omitted.

> 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...

If I understand correctly, it's not that the force of what I said is incorrect, but just that the specific phrase doesn't mean what I intended? The point is still that not all speech is legal, therefore not all code would be legal, even if code is speech.

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

#88

Post by swehner »

exelius wrote: post #86
swehner wrote: post #70

Earlier quoted context omitted.

Not sure what you're saying, what has to be?

Any modern argument based on laws written 250 years ago is going to necessarily be roundabout. If the problem was straightforward, there would probably be established case law addressing it.

Why do you say "a judge has to agree with the argument" -- surely they don't need to agree with hokey arguments.

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

#89

Post by simoncion »

jonlucc wrote: post #87
simoncion wrote: post #8

Earlier quoted context omitted.

> 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...

If I understand correctly, it's not that the force of what I said is incorrect, but just that the specific phrase doesn't mean what I intended? The point is still that not all speech is legal, therefore not all code would be legal, even if code is speech.

> ...just that the specific phrase doesn't mean what I intended?

The point is that the boundaries of where speech loses its First Amendment protections are very clearly defined. Now that you are aware that the "Fire!" example is not an example of unprotected speech, you would do a grave disservice to discourse if you continue to use it as an example of unprotected speech.

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