By David Ingram and Dan Levine
NEW YORK/SAN FRANCISCO (Reuters) - Apple Inc (O:AAPL)
will likely seek to invoke the United States' protections of free
speech as one of its key legal arguments in trying to block an order to
help unlock the encrypted iPhone of one of the San Bernardino shooters,
lawyers with expertise in the subject said this week.
The tech
giant and the Obama administration are on track for a major collision
over computer security and encryption after a federal magistrate judge
in Los Angeles handed down an order on Tuesday requiring Apple to
provide specific software and technical assistance to investigators.
Apple
Chief Executive Officer Tim Cook called the request from the Federal
Bureau of Investigation unprecedented. Other tech giants such as Facebook Inc (O:FB), Twitter Inc (N:TWTR) and Alphabet Inc's (O:GOOGL) Google have rallied to support Apple.
Apple
has retained two prominent, free-speech lawyers to do battle with the
government, according to court papers: Theodore Olson, who won the
political-speech case Citizens United v. Federal Election Commission in
2010, and Theodore Boutrous, who frequently represents media
organizations.
Government lawyers from the U.S. Justice
Department have defended their request in court papers by citing various
authorities, such as a 1977 U.S. Supreme Court ruling that upheld an
order compelling a telephone company to provide assistance with setting
up a device to record telephone numbers.
The high court said then
that the All Writs Act, a law from 1789, authorized the order, and the
scope of that ruling is expected to be a main target of Apple when it
files a response in court by early next week.
But Apple will
likely also broaden its challenge to include the First Amendment's
guarantee of speech rights, according to lawyers who are not involved in
the dispute but who are following it.
Compared with other
countries, the United States has a strong guarantee of speech rights
even for corporations, and at least one court has ruled that computer
code is a form of speech, although that ruling was later voided.
Apple
could argue that being required to create and provide specific computer
code amounts to unlawful compelled speech, said Riana Pfefferkorn, a
cryptography fellow at Stanford University's Center for Internet and
Society.
The order against Apple is novel because it compels the
company to create a new forensic tool to use, not just turn over
information in Apple's possession, Pfefferkorn said. "I think there is a
significant First Amendment concern," she said.
A spokesman for
the U.S. Attorney's Office in Los Angeles declined to comment on the
possible free-speech questions on Thursday.
A speech-rights
argument from Apple, though, could be met with skepticism by the courts
because computer code has become ubiquitous and underpins much of the
U.S. economy.
"That is an argument of enormous breadth," said
Stuart Benjamin, a Duke University law professor who writes about the
First Amendment. He said Apple would need to show that the computer code
conveyed a "substantive message."
In a case brought by a
mathematician against U.S. export controls, a three-judge panel of the
9th U.S. Circuit Court of Appeals, which covers California, found in
1999 that the source code behind encryption software is protected
speech. The opinion was later withdrawn so the full court could rehear
the case, but that rehearing was canceled and the appeal declared moot
after the government revised its export controls.
The FBI and
prosecutors are seeking Apple's assistance to read the data on an iPhone
5C that had been used by Rizwan Farook, who along with his wife,
Tashfeen Malik, carried out the San Bernardino shootings that killed 14
people and wounded 22 others at a holiday party.
U.S. prosecutors
were smart to pick the mass shooting as a test case for an encryption
fight with tech companies, said Michael Froomkin, a University of Miami
law professor. That is because the shooting had a large emotional impact
while also demonstrating the danger posed by armed militants, he said.
In
addition, the iPhone in dispute was owned not by Farook but by his
employer, a local government, which has consented to the search of the
iPhone. The federal magistrate who issued the order, Sheri Pym, is also a
former federal prosecutor.
"This is one of the worst set of facts possible for Apple. That's why the government picked this case," Froomkin said.
Froomkin
added, though, that the fight was enormously important for the company
because of the possibility that a new forensic tool could be easily used
on other phones and the damage that could be done to Apple's global
brand if it cannot withstand government demands on privacy. "All these
demands make their phones less attractive to users," he said.
