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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

#21

Post by facetube »

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…

I would certainly hope so: exploit proof-of-concepts that ultimately help to improve computer security are, in fact, tools that perform nefarious things.

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

#22

Post by dragonwriter »

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...

"Holmes famous phrase" was an emotional argument irrelevant to the facts of the case it was offered in, unsupported by the case law then or now, in one of the most repugnant, anti-free-speech decisions in history, which allowed criminal punishment for pure political speech (and which has since been overturned.)

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

#23

Post by PascalsMugger »

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…

> go against company value

I wonder how it would go down if they said it was against their religion, a la Hobby Lobby.

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

#24

Post by fennecfoxen »

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…

> does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment?

Yes, that's pretty much true, though actually executing that code to perform a nefarious task (or otherwise conspiring to execute the task or encouraging people to that end) may still be illegal.

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

#25

Post by pdabbadabba »

dragonwriter wrote: post #22
IceyEC wrote: post #5

Earlier quoted context omitted.

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...

"Holmes famous phrase" was an emotional argument irrelevant to the facts of the case it was offered in, unsupported by the case law then or now, in one of the most repugnant, anti-free-speech decisions in history, which allowed criminal punishment for pure political speech (and which has since been overturned.)

I agree with you about Schenck, but I'm not sure what this has to do with the broader point at hand. Whatever you might think about Schenck, it is indisputably correct under American law that there are significant categories of speech that can be either proscribed or compelled. Schenck is just one of very many cases that demonstrate this.

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

#26

Post by AnthonyMouse »

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…

> Maybe in that scenario, it would be the author who writes that code who would be protected but the person who executes the deadly code who is breaking the law?

How is that not the only sensible outcome?

Telling people about vulnerabilities is the only way they can defend against them. Defenders need actual exploit code to test their countermeasures against.

The person who uses the exploit to kill someone is the person who uses the exploit to kill someone.

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

#27

Post by Zigurd »

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.

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

#28

Post by bitwize »

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...

Holmes uttered his famous phrase in a Supreme Court opinion upholding the criminalization of criticizing the draft -- which is in more recent times thought to be overstepping the bounds of the 1A.

So while not all speech is protected, the notion of what is protected can change over time -- hopefully in a pro-liberty direction.

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

#29

Post by Zigurd »

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…

> does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment?

It should. Code is speech, so banning private speech is to create a thought-crime. Unless the author of that code intends it to be used as a weapon and facilitates that use, yes, they ought to be protected. Your hypothetical also probably isn't all that hypothetical. Pacemakers have vulns, and it isn't illegal to create a PoC proving the vuln is real. There are probably real world examples.

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

#30

Post by lawnchair_larry »

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.
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