Why Forcing Apple to Write and Sign Code Violates the First Amendment

https://www.eff.org/deeplinks/2016/03/deep-dive-why-forcing-apple-write-and-sign-code-violates-first-amendment

by morninj • 10 years ago

249 109 10 years ago

sigmar7• 10 years ago

Other amicus briefs from today:

https://assets.documentcloud.org/documents/2746620/Apple-Ami... Airbnb Inc., Atlassian Pty. Ltd., Automattic Inc., CloudFlare Inc., eBay Inc., GitHub Inc., Kickstarter PBC, LinkedIn Corporation, Mapbox Inc., A Medium Corporation, Meetup Inc., Reddit Inc., Square Inc., Squarespace Inc., Twilio Inc., Twitter Inc., and Wickr Inc.

https://assets.documentcloud.org/documents/2746626/Apple-Ami... AT&T Mobility LLC

vonklaus• 10 years ago

AT & T, coming in publicly in favor of congressional oversite. That is a big deal. I respect them for doing this, and will taper the cynical part of my brain, and simply say:

"At&t, we haven't always seen eye to eye on what constitutes a hidden fee, or applicable taxes, but thank you for doing this."

I am serious. No one would have been asking AT&T to do this, or at least surprised if they didn't. Thanks

whatusername• 10 years ago

If you want to indulge your synicism -- remember that apple is a big partner of AT&T.

otterley2• 10 years ago

I wonder why they didn't argue that it also violates the 13th Amendment's prohibition against involuntary servitude.

morninj4• 10 years ago

Courts have almost never applied the Thirteenth Amendment to claims by people not descended from slaves.

fiatmoney2• 10 years ago

That's simply not true. See http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=10... for some examples.

Specific performance of personal services is something courts are skittish about compelling but there are uncountable nuances. In particular I don't believe that the 13th has ever been held to apply to non-natural persons (eg corporations or trusts).

otterley2• 10 years ago

The question has never been directly before the Court. To my knowledge, the Supreme Court has never said the 13th Amendment "doesn't apply to any situation except forced individual slavery" or the like.

The trouble is, if Apple doesn't raise it early on, it won't be considered, and we'll never really know.

chrisabrams• 10 years ago

Great question! I have wondered the same thing.

My guess would be the US Govt would argue that it is not "benefitting" from the cooperation:

"Involuntary servitude or Involuntary slavery is a United States legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs." [1]

Or..that Apple is not a person. Or..that Apple is not being coerced.

Who knows :/

1. Wikipedia: https://en.wikipedia.org/wiki/Involuntary_servitude

tjl• 10 years ago

Hmm. It's been held up in court that companies are people in regards to other laws, so it's an interesting argument.

justinjlynn• 10 years ago

The government would most certainly be benefiting from such cooperation. I would imagine that the data so provided would save the government from doing much investigation. This is a clear demonstrable benefit. If the data is not acquirable by other means, then the cost of acquisition is infinite and the benefit is as well. Of course, this depends on the definition benefit much like Nixon's definition of legality.

Lawtonfogle• 10 years ago

under some form of coercion other than the worker's financial needs.

I like the way that financial needs is considered coercion, but is just exempted. I wonder what the basis for the exemption is. How can it be justified compared to other forms of coercion (or the use of financial coercion in other areas) without resorting to special pleading?

nitrogen• 10 years ago

It also seems that some of the government's ideas (like the old Clipper Chip) would violate the third amendment, as they are forcing you to house a government agent in your software/hardware.

acgourley• 10 years ago

Would it be contradictory to be OK with this argument but against the logic of the Citizens United ruling?

morninj4• 10 years ago

No, I don't think it's contradictory. Money can be speech, but sometimes there are good reasons to restrict free speech. One reason is that money can corrupt the democratic process--which is why the Supreme Court hasn't struck down limits on direct contributions to candidates (but god help us if they do).

Edit: It's a common misconception that Citizens United allowed unlimited campaign contributions to candidates. That's not quite true--it allowed unlimited independent expenditures by corporations, but not unlimited contributions directly to candidates. The Supreme Court held in Buckley (1976) that the limit on direct contributions was a constitutional restriction on free speech because of the government's interest in "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office." That ruling still stands.

Edit 2: Citizens United didn't hold that corporations are people--that doctrine has been around for a century. It held that because corporations are people, they have the same speech rights as natural persons--namely, to make unlimited independent expenditures.

JoshTriplett• 10 years ago

I find it unfortunate that Citizens United extended the concept of corporate legal personhood espoused by Santa Clara County v. Southern Pacific Railroad (https://en.wikipedia.org/wiki/Santa_Clara_County_v._Southern...). I think instead it makes sense to say that corporations are made up of people, and it doesn't make sense to grant a right to individual people but deny them the ability to act as a group in exercising that right. It would have sufficed to rule based on freedom of association: https://en.wikipedia.org/wiki/Freedom_of_association#United_...

lmm2• 10 years ago

Edit: It's a common misconception that Citizens United allowed unlimited campaign contributions to candidates. That's not quite true--it allowed unlimited independent expenditures by corporations, but not unlimited contributions directly to candidates. The Supreme Court held in Buckley (1976) that the limit on direct contributions was a constitutional restriction on free speech because of the government's interest in "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office." That ruling still stands.

The trouble is that it has the same effect, and creates the same appearance of corruption. Acausal trade is possible; a candidate and their PAC do not have to directly communicate to end up influencing each other's behaviour.

mikeash• 10 years ago

Restricting speech and compelling speech are separate concepts, so I don't think it's inherently contradictory.

relevant_thing• 10 years ago

Not necessarily. Obviously this argument requires a corporate right to First Amendment protections. But that doesn't imply that corporations (or anyone) should be able to make unlimited expenditures on electioneering. This brief assumes that corporations are (in some sense) people, but not that they are entitled to put political ads on TV.

rayiner3• 10 years ago

It is contradictory, to the extent that you believe Citizens United was wrong because corporations don't have First Amendment Rights.

Note that the "is money speech" question is a total red herring. Citizens United was about a movie critical of Hilary Clinton. It was as core to the First Amendment as it gets. If anything Citizens United, a non-profit organization that exists for the purpose of promoting political messages, is far more entitled to speech rights than Apple, a for-profit company that has little political involvement.

guelo• 10 years ago

It wasn't the producing or broadcasting of the movie that was prohibited under the previous campaign finance laws, it was the paying for ads to promote it and the paying to have it aired. The court ruled that Congress could not ban paying for these services because it violated their free speech. So yes, they didn't rule that "money is speech" but they did rule that using money is speech.

swehner6• 10 years ago

I submit this is cynical. To call this speech is just misleading.

Laws will always be around to make people do things they don't want to do. To twist this into some kind of speech issue is silly.

morninj4• 10 years ago

If writing code isn't speech, what is it?

EGreg• 10 years ago

Speaking!

hunter2_3• 10 years ago

Is it only speech/writing because high level languages are like English? Are low level languages, down to the point of setting individual bits, also speech/writing? Is flipping a bank of 8 single pole single throw switches speech/writing?

kdkooo• 10 years ago

I agree with this. The company has many other ways of expressing their beliefs, but calling the code specifically a form of speech feels like a stretch. Overall I am on Apple's side of this. But while this article makes an interesting argument, I just don't think I buy it.

millstone2• 10 years ago

An analogy is the government forcing you to draw something objectionable, and then sign your name to it. That's clearly unconstitutional compelled speech, plus the mere existence of an obscene work signed by you could seriously harm your reputation as an artist.

Here the creative work is software, and the signature is digital, but the principle is the same.

swehner6• 10 years ago

Exactly, that's not a free speech issue, and talking like that is cynical.

colejohnson663• 10 years ago

The courts have ruled consistently that software code is speech

sdenton4• 10 years ago

I disagree. The case they're making here is really interesting: a software signature is a statement in support of the software object, and compelling the signature is essentially compelling Apple to vouch for something they don't believe in.

rayiner3• 10 years ago

Note that the focus of the EFF's argument is not on writing the code, but on expressive act of signing the code. Part I of its argument establishes that the government cannot compel a company to convey a message it disagrees with. Part II argues that the act of conveying trust in code by signing it is still expression even though it involves code.

The EFF's framing has the advantage that it doesn't require the unworkable corollary that the government cannot dictate the content of code--and so operation of digital products--because "code is speech" in all circumstances.

ridgeguy• 10 years ago

re Part I: isn't there precedent for this in, for one example, the warning labels that cigarette makers are required to place on their products? I doubt those companies agreed with the message, but they were forced to add it to their product packaging.

mdturnerphys• 10 years ago

They only have to do so if they want to sell cigarettes, which is not a constitutional right.

rhizome• 10 years ago

Congress can do that. Cigarettes are a special case with their own law and everything:

https://www.ftc.gov/enforcement/statutes/federal-cigarette-l...

Some have opined that the FBI submitted the NYC case when Judge Orenstein was likely to get the case in order for it to be struck down, after which they go to their preferred playground: Congress.

In the event Congress passes a law forcing Apple to sign code they don't want to sign, we'll long have been hearing rumbles about Apple moving to Ireland or wherever by then.

executesorder66• 10 years ago

The warning is for the danger smoking has for your health. I'm sure cigarette companies don't believe cigarettes are healthy, or at the very least have no negative effects on your heath.

They are just worried that a health warning on all their products would affect their products. Just because they don't want the health warning to be true, doesn't mean they don't believe it is true.

jameshart• 10 years ago

The warning is at least clearly attributed to the Surgeon General, not the manufacturer, which goes to the EFF argument. The government could compel Apple to produce an update 'signed by the director of the FBI', but one signed by Apple is a different matter. The fact that an iPhone won't install an update signed by anyone else is a separate problem.

wildmusings3• 10 years ago

Part I of its argument establishes that the government cannot compel a company to convey a message it disagrees with. Part II argues that the act of conveying trust in code by signing it is still expression even though it involves code.

Conveying to whom? I think this is where the argument falls apart. Yes, Apple signs updates as a way of conveying their veracity to users. But Apple is not being forced to send this update to anyone, much less vouch for its veracity.

Forcing Apple to publish this update to iPhones at-large would be compelled speech, in my opinion.

I'm not convinced by the argument that code-signing has some special status, and should be treated differently than other technical machinery. Let's do a little thought experiment. Let's say that Apple has a database with everyone's iPhone PIN in it. Except that this database is held in a machine, owned by Apple, with similar security as an iPhone 5C. It can release the PIN to the corresponding end-users, but only after successful authentication with their password. It has simple software checks to prevent Apple's employees from querying arbitrary people's PINs. To retrieve someone's PIN in response to a court order, Apple would need to update the code on this device to allow arbitrary PIN queries. This would require signing that update. Could the government compel them to do that?

sigmar7• 10 years ago

You should read the amicus if you actually want those questions answered.

Specifically-

It makes no difference that the Apple’s edited code and signature will be communicated only to the government or internally. The compelled loyalty oath struck down in Speiser v. Randall, 357 U.S. 513, 515 (1958), required those veterans applying for benefits only to submit a form to the government. The loyalty was unconstitutional despite the fact that they were not required to make any type of public affirmation. Id. at 529

fleitz• 10 years ago

That thought experiment is an entirely different case, and yes Apple regularly provides iCloud backups to law enforcement.

Apple does not own the phone, nor does it posses the data. In the case where apple owns the server and a customer's data resides on it the court may compel Apple to provide the state the evidence. Similarly, if Apple posessed the key to the device they would be compelled to provide it.

Apple has intentionally designed the system so that users are able to use their phone without storing the data or encryption key on Apple's servers to avoid that thought experiment because everyone agrees that that thought experiment leads to apple having to provide the keys/data.

Also, Apple doesn't have to update the code, they need to provide the PIN, how they do it is completely up to them. If they refuse a search warrant will be issued and the US Marshalls will seize the evidence.

lern_too_spel• 10 years ago

Attacking the EFF's argument more directly, every court order sent to Apple in the past compelled actual speech in forcing Apple to tell an employee to cooperate with the order, regardless of whether Apple agreed with that speech. The courts have put common-sense limits on free speech (e.g., Oliver Wendell Holmes's "falsely shouting fire in a theatre"), and this looks like an obvious case of such a limit.

sigmar7• 10 years ago

It definitely focuses on the digital signature, but the EFF is also arguing the expression of Apple's beliefs within the operating system should be protected by the first amendment.

The Order is unconstitutional because it compels Apple to express itself in conflict with its stated beliefs. The Order forces Apple to say something it does not want to say and that it believes is “dangerous.” It then forces Apple to endorse code it does not want to endorse and thereby undermine the trust it has established in its digital signature. Each of these acts of compelled expression implicate the First Amendment independently, but together they are even more harmful, hindering Apple’s ability to communicate its desired messages to its users, and to the world, into the future.

leereeves• 10 years ago

The courts have already ruled that code is speech.

In Universal City Studios, Inc. v. Corley (the case about the DVD decryption tool DeCSS), the Court of Appeals stated:

Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer.
we join the other courts that have concluded that computer code, and computer programs constructed from code, can merit First Amendment protection, although the scope of such protection remains to be determined.

But First Amendment protections are not unlimited. The court ruled in that case (and others) that:

the scope of protection for speech generally depends on whether the restriction is imposed because of the content of the speech. Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available. A content-neutral restriction is permissible if it serves a substantial governmental interest, the interest is unrelated to the suppression of free expression, and the regulation is narrowly tailored, which "in this context requires . . . that the means chosen do not ‘burden substantially more speech than is necessary to further the government's legitimate interests.'"

ethbro• 10 years ago

Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available.

To me, the EFF's argument is more perpendicular to this. They're not arguing about restriction / suppression of free speech, but rather noting that requiring Apple to create, disseminate, and sign an iOS version amounts to compelling speech.

From looking at case law (ianal), this looks murky. Commercial speech (which this would be) has a history of being subject to a different interpretation of free speech than individual.

The obvious example is cigarettes: the government compels private cigarette companies to include warnings on their product packaging for the good of the state.

The twist here is the all/nothing nature of certain encryption questions. Ultimately, we're going to get back to the Clipper Chip, Round 2 and whether private companies have the right to create a system even the government can't breach.

wmt• 10 years ago

The focus on Apple writing the OS is something I've wondered about the whole debate, as the core of the issue was never about writing the code, but signing it.

The FBI also could've ordered Apple to sign their house-made FBIOS for iPhone to crack the decryption, and Apple complying would've undermined the iOS security at least as must as the current scenario.

cm21873• 10 years ago

Though code should be rather "blue print" rather than speech. You don't express an opinion with code. You express a technical design.

nanofortnight2• 10 years ago

A recpie is no less a form of speech for it's need of the use an oven. A muscal score is no less speech because of it's need of use of an instrument. Mathematical expressions are considered speech. Why should code be any different just because it requires use of a comptuer?

If someone chose to write a document in LaTeX should be considered different for constitutional purposes as compared to it being written on paper?

Programmers communicating ideas between each other inevitably use code to communicate. Why shouldn't this speech be protected?

If code truly was "just a blueprint", why do we care so much about how code is expressed? Why do we care how easily it is for one to comprehend and understand and in modern times emphasise that "code meant for humans to read, and only incidentally for computers to interpret"?

If a company, made up my the coordinated/chaotic movement of individuals, can be considered to express speech, why shouldn't a computer program, embodied with the spirit of the designers not be considered to express speech?

throwaway_yy2Di2• 10 years ago

Is code-signing expressive if it's compelled?

peterkelly• 10 years ago

From my understanding of the EFF's argument, yes - and they are arguing that the government cannot compel Apple to express themselves in a manner contrary to their views (and thus they can't compel code signing).

rainsford• 10 years ago

I am not a lawyer, but it seems like the EFF's argument still reduces to "the government cannot dictate the content of code" in cases where the code is signed, which a lot of modern code is. It's an interesting argument, but I think it might reach a little too far to be successful.

I can guess why the EFF is making it though. A decision vacating the order because of 1st amendment protections seems like it could also be a precedent against something like a version of CALEA expanded to include Apple, or even CALEA as it stands now.

contravariant• 10 years ago

It's not quite the same. The government could (conceivably) dictate the content of the code, but the argument then goes that signing the code conveys the message that Apple has 'approved' of the code, similar to signing your name on a particular declaration.

Conversely should the first amendment not protect Apple from having to cryptographically sign their code, then arguably the government should also be able to force a person to cryptographically sign a message that runs contrary to their views. Which seems a pretty clear violation of the freedom of speech.

pklausler2• 10 years ago

The gov't doesn't need to get Apple to write or sign anything; they just have to subpoena the private key and the source code.

iopq3• 10 years ago

That would be MUCH worse, since it allows the government potentially hack anyone's iPhone.

vectorjohn2• 10 years ago

But when anyone brings up that if Apple were to do it they could make a version that doesn't have the possibility of hacking anyone's phone, people seem to think that isn't possible. Clearly it is.

pklausler2• 10 years ago

Yes, it would be very much worse. And I'm not advocating that the gov't take this course of action. I'm just surprised that they didn't. Surely it would have been easier to subpoena a number from Apple than it is to get into a 1st Amendment battle over compelled speech.

ReedJessen2• 10 years ago

They don't have the private key, hence the debate.

hoi• 10 years ago

Just wondering, what would be the legal case if this was not the USA?

ReedJessen2• 10 years ago

Doesn't the government force recalls of products like fault car accelerator pedals? Presumably theses are software fixes which the companies are compelled to write?

fowl2• 10 years ago

well there there is also the option of 'just' refunding the cars

jumpbackwards• 10 years ago

Hopefully a software fix doesn't compel a new ideology of speech: just a better explained form of what they've already said.

sbuttgereit3• 10 years ago

Not worrying about what the law actually is for a moment, what I'm a bit curious about is how some here likely support the invocation of rights under the First Amendment for Apple in this case, yet will maintain that First Amendment rights for companies shouldn't be recognized when other issues are at stake, such as a question of politics is involved (thinking the Citizens United case specifically). How does one resolve that contradiction in constitutional interpretation? (Yes I do know that historically constitutional rights have had partial applicability to companies recognized by courts... But even so that seems contradictory to the proper definition of a "right" guaranteed by the Constitution: either they apply or not.)

nindalf• 10 years ago

That and the packaging laws on cigarettes, which is certainly compelled speech. I think its a little difficult opposing Citizen's United and supporting packaging laws while still arguing that Apple deserves First Amendment rights and should not be compelled to digitally sign the backdoor.

Hopefully someone more knowledgeable can clarify if these cases to apply to Apple.

redthrowaway• 10 years ago

CU was my first thought, too. I don't like arguing this case as a violation of Apple's 1A rights, which I don't believe exist.

There seems to be a real desire in the US, on both sides of the political divide, to offload policy making to the courts (when it works in your favour, and despise it when it goes against you). Fetishization of a centuries-old document, that has long been surpassed by others in its ability to deliver effective government, is not how healthy societies should meet and face the challenges of their day.

The government shouldn't compel Apple to do this because it's wrong and it hurts America, not because it violates Apple's supposed constitutional rights.

studentrob3• 10 years ago

I have no difficulty opposing Citizens United and supporting Apple's position.

There is a big difference between money and code, and more similarities between code and text or speech. People cannot generate money as freely or easily as they can generate text, speech, or code. Money is in limited supply, whereas speech / text / code are unlimited.

sbuttgereit3• 10 years ago

There are at least two problems with your position.

1) Production != Distribution. The distribution of speech / code / text is not in unlimited supply. Sure, I can go set up a soap box in front of city hall and have my say to anyone within earshot; but even then I'll have an advantage over the poor sucker that can't afford a soap box. Distribution of speech takes resources, which ultimately means money or time. This isn't new; in the late 18th century you'd need access to a printing press and delivery people to reach a sufficient number of people. Today you need additionally need broadcasting and computers. None of it free. And while the right to speech does not include the right to be heard, it does imply at the very least that you should be able to improve your chances of being heard.

2) We have the right to associate with other people and act cooperatively in common cause. We may pool our money to put our views on the same playing field as someone with greater resources, we can create an efficient division of labor to achieve our ends, and ultimately elect to leave should we find our views departing from the direction of the group. Why should people lose their individual rights simply because they cooperate? Why is it right to apply force to give preference to one kind of association of people over another?

Apple is correct in pursuing Constitutional rights, because at the end of the day it is the rights of individual shareholders acting in association and common cause. It is the rights of a person to not have their property put to use against their own interests: whether those are financial interests or interest in the functioning of society. Your only proper tool against them is to also make speech, including associating with other like minded individuals if you need to; it is not proper pr moral to coercively silence those associations you disfavor.

cm21873• 10 years ago

Sort of off topic but I wonder why the most cited articles in the constitution are all amendments

  1st - free speech
  2nd - bear arms
  4th - searches and seizures
  5th - self incrimination
  6th - cruel and unusual punishments

I almost never hear any of the original articles being cited in any heated debate.

brownbat• 10 years ago

Most of the original articles are logistical, and arise most frequently in administrative law,* which tends to be more technical and not make as many headlines.

Some provisions in the original articles limit government action, though, for example, barring ex post facto laws and ensuring habeas corpus. Often these provisions are referenced in combination with other amendments, like due process, so they can become overshadowed in the public discussion.

* Because admin law deals with thorny authority issues, in turn because administrative agencies are a frankenstein that's partly legislative, partly executive, and partly judicial.

TillE2• 10 years ago

The commerce clause can still be a contentious issue.

And just recently we've had a lot of people angrily pointing to Article II Section 2, which states that the President shall appoint Supreme Court justices, with the advice and consent of the Senate.

throwaway173197• 10 years ago

Counterpoint: Since the government can compel you to testify about facts (without self-incrimination), compelled code-signing may not be a 1st amendment violation.

One could posit that code-signing is solely Apple stating that a given sequence of bytes has not been subsequently modified. You might even view Apple's EULA - that includes "AS IS" clauses disclaiming warranty and fitness for purpose - as supporting this interpretation.

jimktrains2• 10 years ago

A signature on a document is not simply a statement that you read the document, but also that you agree with and stand behind the contents and as an author's signature it is a statement that you want to be associated with said document; a digital signature should be treated the same way.

The court cannot compel me to sign just any document nor can they force me to write any document and then sign it. It would be absurd for me to have to be forced to write a document disavowing my believes and sign it, why should anyone be forced to write, let alone sign, software they don't agree with?

daodedickinson• 10 years ago

Why can we force automobile manufacturers to include seat belts and air bags?

scelerat• 10 years ago

This story reminded me I had allowed my EFF membership to lapse. Fixed.

Why Forcing Apple to Write and Sign Code Violates the First Amendment

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