First Amendment Protections for Software, the F.B.I.’s Forbidden Fruit

by: Joshua Brownlee

A legal battle is currently being waged between Apple and the F.B.I. Read Apple’s Motion to Vacate for more backstory. Comedian and reluctant journalist, John Oliver recently ran a segment explaining the tensions between compromised software security and national interests on his show Last Week Tonight. Most journalists are following John Oliver’s lead and focusing on the same issue. What many journalists fail to mention is the Apple case’s implication of freedom of expression and speech. The overlap between computer language and free speech is a relatively new legal concept and the consequences of Apple’s case may have far reaching effects on the way software developers market, create, and communicate in code. It’s important to note that major software companies, including Apple, have a long history of complying with information requests from law enforcement agencies. Over the last two years, the tone has changed. At the heart of this debate is a series of laws that have typically allowed government agencies to freely graze on the private information of consumers. One such law is commonly known as The All Writs Act of 1789 or more formally known as 28 U.S.C. § 1651, which states:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

A “writ” is essentially a formal written order from a court ordering something to be done. One of the most common examples of a writ is a subpoena for documents or witnesses to appear in court. Compelling parties that have relevant knowledge about a case to show up and give testimony or documents is essential to providing a fair judicial process to society. That all seems pretty straight forward, until you read how Federal Courts interpret 28 U.S.C. § 1651. Courts have expanded the scope of 28 U.S.C. § 1651 to go beyond providing documents or testimony, holding “in aid of a valid warrant, to order a third party to provide non-burdensome technical assistance to law enforcement officers.” Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). The F.B.I. argues it’s using 28 U.S.C. § 1651 as a legal mechanism to acquire reasonable technical assistance to assist law enforcement agents in obtaining data. The problem is that the software required does not currently exist, meaning the programmers for Apple will have to create new software. When most people think of computer code, they think of binary zeroes and ones or a series of weird symbols scrolling down a screen endlessly. Software code is a language, and what’s more, its variations are some of the most widely used forms of communication on the planet. Everything from cell phone apps to bitcoins use creative individual language to communicate with the rest of the human species. What’s amazing is that most people who rely and use software to communicate don’t understand it as a language. There is a temptation by nonprogrammers to undermine the expressive and unique aspects involved in software creation. Similar to a native English speaker not understanding the expression and uniqueness from an Arab reading Al-Mutanabbi.

In the last 15 years courts have started to respect code as having the potential for First Amendment Protections. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) and Junger v. Daley, 209 F.3d 481 (6th Cir. 2000). Obviously if there was a better understanding of programing in society as a whole, then Apple would have a much easier case. This is especially true when we are reminded that speech cannot be compelled by the government. Riley v. Nat’l Fed. Of the Blind of N.C., Inc., 487 U.S. 781 (1988). The First Amendment mandates that courts presume speakers, not the government, know best on “what they want to say and how to say it.” Id. at 791. The High Court stated:

Thus, where, as here, the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical. Therefore, we apply our test for fully protected expression. Id. at 796.

If Apple is forced to create code, it is being forced to create speech. The speech created will not be for a commercial purpose, but for the government’s own agenda which is to enable law enforcement to take consumer data that is currently inaccessible. The identity of the consumer is irrelevant as to whether the government can force a company, or individual, to create software that undermines consumer privacy or personal belief. It doesn’t matter if creating the software actually undermines consumer privacy or not. What is relevant, is that the creator of the speech believes the code will be abused. It is not for the government to control the thoughts, speech, and expressions of its citizens, this includes programmers. The tragedy of the San Bernardino terrorist attack does not give a green light to law enforcement to run amok in the garden of liberty. Fundamental rights exist to remind the government that it was created by the people, and therefore does not have access to the forbidden fruits of our creative expression.

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