3 ms·

If you have done nothing wrong, broken no law, can a court order you to write a letter or a book? If not, then on what basis does a court order someone (a compa

by cmurf 11y ago

If you have done nothing wrong, broken no law, can a court order you to write a letter or a book? If not, then on what basis does a court order someone (a company) to write code? This isn't just a matter of removing the anti-bruteforcing code, the FBI has also asked for a way to quickly iterate passwords without using the on-screen keypad. That's creating new functionality, not just removing existing functionality. This seems specious. This almost certainly ends up at the Supreme Court, but due to the national security implications of the case it's plausible certiorari petition could be made by either Apple or the government. And yet we have a 4-4 court right now.

rayiner 11y ago
I think most technical people, under ordinary circumstances, if asked to make a build of some software with a security feature disabled,[1] would not consider it akin to being asked to create something new akin to writing a letter or a book. [1] Or really any small tweak. I can remember at least a couple of times being asked to provide someone with a special build of software I worked on that, e.g., logged something it didn't ordinarily log to help debug an issue a customer was having that we couldn't reproduce in-house. Can't say I ever thought of that as creating new software, even if I added some fprintf statements that weren't there before.
- harywilke 11y ago
  Adding an extra log line is a bit different than custom tailoring a hardware id check that can't trivially be reverse engineered by a highly motivated party.
- cmurf 11y ago
  Adding a means for FBI to input passcodes via Lightening connection instead of the touch screen is certainly a non trivial addition. Can a court order someone to delete phrases from a letter or book? Code is protected under copyright law. Code is a form of speech. How is either a court, or law enacted by Congress, telling someone what to write or delete what's already written, not abridging speech? Why is code different?
  - harryh 11y ago
    > How is either a court, or law enacted by Congress, telling someone what to write or delete what's already written, not abridging speech? Abridge means to curtail. Telling someone to create something doesn't curtail anything.
  - rayiner 11y ago
    The First Amendment doesn't protect written works, it protects expression. Non-written works can be expression (black arm bands worn in protest), and written works can be functional and non-expressive (e.g. a legal contract). Code is only speech when it's being used as a form of expression. If it's just used to make a commercial product go, it's not speech.
  - deleted 11y ago
    [deleted]
  - kenshaw 11y ago
    This would not be a "freedom of speech" issue, as it's not preventing speech (which is what the 1st amendment protects). It's compelling (arguably) a significant amount of labor / work, that in the end results in compelled speech (code) -- in a way, this is more of a 4th (due process) and 14th amendment issue (equal protection / indentured servitude [slavery]). A bigger question might be if the government has the ability to require Apple to do this without compensation, and if they do, then who gets to set the rates or define the project -- Apple or the government? Possibly, a better tact/approach for Apple (discounting the setting of precedent, etc) would be to bill the government $700-$1000/hour per developer, and assign a team of 200-300 developers to this, with an expected delivery date of 3-5 years. As the government starts paying down $100 million/month for in effect, nothing, very quickly the public would become outraged and force the question of compensation into court. At the end of the day, the people/government would have to decide if its worth either 1) forcing Apple to do this uncompensated or 2) if it is worth the cost to decrypt one phone -- neither I believe would be widely popular/supported. Regardless of what happens, unless the FBI withdraws this request, which is highly unlikely -- they have clearly chosen this case due to the terrorism connection to be its legal Alamo -- this is going to end up in front of the Supreme Court.

by cmurf 11y ago

rayiner 11y ago

I think most technical people, under ordinary circumstances, if asked to make a build of some software with a security feature disabled,[1] would not consider it akin to being asked to create something new akin to writing a letter or a book. [1] Or really any small tweak. I can remember at least a couple of times being asked to provide someone with a special build of software I worked on that, e.g., logged something it didn't ordinarily log to help debug an issue a customer was having that we couldn't reproduce in-house. Can't say I ever thought of that as creating new software, even if I added some fprintf statements that weren't there before.

harywilke 11y ago
Adding an extra log line is a bit different than custom tailoring a hardware id check that can't trivially be reverse engineered by a highly motivated party.
cmurf 11y ago
Adding a means for FBI to input passcodes via Lightening connection instead of the touch screen is certainly a non trivial addition. Can a court order someone to delete phrases from a letter or book? Code is protected under copyright law. Code is a form of speech. How is either a court, or law enacted by Congress, telling someone what to write or delete what's already written, not abridging speech? Why is code different?
- harryh 11y ago
  > How is either a court, or law enacted by Congress, telling someone what to write or delete what's already written, not abridging speech? Abridge means to curtail. Telling someone to create something doesn't curtail anything.
- rayiner 11y ago
  The First Amendment doesn't protect written works, it protects expression. Non-written works can be expression (black arm bands worn in protest), and written works can be functional and non-expressive (e.g. a legal contract). Code is only speech when it's being used as a form of expression. If it's just used to make a commercial product go, it's not speech.
- deleted 11y ago
  [deleted]
- kenshaw 11y ago
  This would not be a "freedom of speech" issue, as it's not preventing speech (which is what the 1st amendment protects). It's compelling (arguably) a significant amount of labor / work, that in the end results in compelled speech (code) -- in a way, this is more of a 4th (due process) and 14th amendment issue (equal protection / indentured servitude [slavery]). A bigger question might be if the government has the ability to require Apple to do this without compensation, and if they do, then who gets to set the rates or define the project -- Apple or the government? Possibly, a better tact/approach for Apple (discounting the setting of precedent, etc) would be to bill the government $700-$1000/hour per developer, and assign a team of 200-300 developers to this, with an expected delivery date of 3-5 years. As the government starts paying down $100 million/month for in effect, nothing, very quickly the public would become outraged and force the question of compensation into court. At the end of the day, the people/government would have to decide if its worth either 1) forcing Apple to do this uncompensated or 2) if it is worth the cost to decrypt one phone -- neither I believe would be widely popular/supported. Regardless of what happens, unless the FBI withdraws this request, which is highly unlikely -- they have clearly chosen this case due to the terrorism connection to be its legal Alamo -- this is going to end up in front of the Supreme Court.