Yesterday, Apple filed its opposition to the district court’s order compelling Apple to assist the FBI search San Bernardino shooter Syed Farook’s iPhone. As predicted, Apple’s motion focuses on the All Writs Act and the unreasonable burden the court order places on Apple, given Apple’s attenuated connection to the case. Apple also makes powerful points supporting the slippery-slope concern that the FBI will use this precedent to require Apple to compromise the security of its phones in other cases, including cases not involving terrorism. These arguments, in conjunction with the fact that the FBI could have avoided this situation if the Bureau simply hadn’t changed the iCloud password associated with Farook’s account, have firmly convinced me that the district court should vacate its order. That said, Apple’s First Amendment position, spanning just over two pages in a 35-page motion, misapprehends the First Amendment’s role in protecting computer code.
With more space, Apple perhaps could have done a better job advancing its compelled speech argument. There are echoes of potential free speech concerns in this case, given Apple’s vocal support of privacy rights. As currently articulated, the First Amendment is used in a way that demotes free speech values and undercuts the rest of Apple’s position.
Apple’s argument is difficult to untangle. My best reading of the argument is that it relies on a combination of the fact that (1) computer code is protected expression, (2) the FBI’s views on decryption contrast starkly with Apple’s, showing a motive to suppress speech, and (3) compelling speech, not just censoring speech, is a First Amendment violation. Neither of these points justifies Apple’s position.
Computer code is considered speech only when the code affects the thinking process of a human being. Courts have held that computer code can tell a story and therefore should not be denied speech protection simply because that story is told in a different language. A programmer reading a code learns about the software and understands more about programming, just as a chef learns more about cooking by reading a recipe. This is why bans on the exporting of encryption source code receive First Amendment scrutiny; the “computer source code is an expressive means for the exchange of information and ideas about computer programming.”
But computer code is speech only when it tells its story to people, even if only for a moment’s interaction. Computer code is not speech when it mechanically instructs a computer to perform a function. This is why the Digital Millennium Copyright Act, which bans technology that facilitates the making of illegal copies of DVDs, regulates only the nonspeech elements of software. The DMCA targets the capacity of software to extract information from a DVD, and is not intended to abridge the information expressed to other programmers in the software. As other examples, a securities trading program was not considered speech because the program mechanically instructed users whether to buy currency futures upon being fed a currency market rate, without the user using her own mind or will. In contrast, a hyperlink contains speech components (the Internet address of a linked webpage) and nonspeech components (the functional capacity to access the webpage).
The software that Judge Pym’s order requires Apple to design would allow the FBI to enter attempted passwords quickly without Farook’s iPhone deleting its contents upon entry of successive incorrect passwords. These features mechanically tell the iPhone, without human intervention, to allow the insertion of new passwords. The computer code the court is asking Apple to design is therefore not speech, but designed as mechanical instructions to a computer.
As a result, Apple’s claim that the court’s order discriminates on the basis of Apple’s viewpoint makes little First Amendment sense. Essentially, Apple’s argument is that because computer code is expression, the FBI is forcing Apple to create code expressing a viewpoint to which it is opposed: that phone data should not be encrypted beyond government reach.
This is a smart argument, but somewhat absurd. Perhaps Apple’s pro-privacy message is manifest in the nonspeech elements of Apple’s computer code, but so too is that message inherent in key or safe manufacturing, which is regulable conduct. At best, the FBI is targeting Apple’s expressive conduct, and has a reason for doing so that is unrelated to the content of Apple’s speech. The FBI has no motive to, “regulate speech that favors some viewpoints or ideas at the expense of others.” The FBI, in this case, simply wants to access Farook’s phone, not to tamper with the content of the code because it expresses a pro-privacy viewpoint.
Of course, it is true that the FBI disagrees with Apple’s view that the government shouldn’t be able to force the unlocking of Farook’s phone. Apple’s argument, taken to its logical conclusion, would mean that if Congress forced companies to store users’ decrypted iPhone data in the event that the FBI obtains a valid search warrant for someone’s data, this legislation would also be impermissible viewpoint discrimination of speech. This runs counter to Apple’s All Writs Act argument. Apple notes that Congress, and not the courts, should be determining whether information service provides need to keep decrypted copies of users’ data.
Finally, to the extent that Apple’s compelled speech argument turns on the fact that the district court ordered that “[t]he code must contain a unique identifier so that [it] would only load and execute on the SUBJECT DEVICE, and it must be signed cryptographically by Apple using its own proprietary encryption methods,” (p. 32, internal citations omitted), this argument also conflicts with its position under the All Writs Act. The reason the FBI wants these features is so that other hackers cannot use the software Apple creates to access other individuals’ phones. The phone-specific and Apple-specific identifiers mean that Apple is placing the privacy and security of its customers in less jeopardy.
I believe it is fair to classify Apple as a defender of important privacy and security interests in this case. Apple, however, is not serving First Amendment interests well. Apple’s short First Amendment argument lends support to the (I think incorrect) view that the First Amendment is now being used as an all-purpose deregulatory tool.