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Why Forcing Apple to Write and Sign Code Violates the First Amendment
- sigmar 11y agoOther amicus briefs from today: https://assets.documentcloud.org/documents/2746620/Apple-Amicus-Brief-by-Airbnb-EBay-Twitter-and.pdf 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-Amicus-Brief-From-AT-amp-T.pdf https://assets.documentcloud.org/documents/2746626/Apple-Ami... AT&T Mobility LLC
- vonklaus 11y agoAT & 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 11y agoIf you want to indulge your synicism -- remember that apple is a big partner of AT&T.
- spacecowboy_lon 11y agoMore frenemies than partners
- deleted 11y ago[deleted]
- otterley 11y agoI wonder why they didn't argue that it also violates the 13th Amendment's prohibition against involuntary servitude.
- morninj 11y agoCourts have almost never applied the Thirteenth Amendment to claims by people not descended from slaves.
- fiatmoney 11y agoThat's simply not true. See http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1073&context=facpubs 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).
- morninj 11y agoDid you read the article? Here's an excerpt from the discussion about the Peonage Cases: While some of these statutes—such as Florida’s sanctions for impudence—went beyond the mere punishing of breach of contract, all of them operated within a thick web of other laws that had the effect of suppressing competition between employers, further restricting the choices available to African-American workers. First, states passed anti-enticement laws that created penalties for those who tried to lure away employees with offers of better wages or working conditions. Second, emigrant agents, who recruited African-American workers in areas of low employment and transported them to jobs in distant, labor-starved markets, were subject to onerous licensing and taxation requirements.355 Georgia, for example, levied a tax of $500 on emigrant agents for each county in which they operated.356 Mississippi made it a crime to “entice . . . [any] negro” to leave the state. Courts apply the Thirteenth Amendment to cases involving the "badges and incidents of slavery." Usually, that refers to some form of systematic oppression of African Americans. It definitely doesn't include forcing Apple to write and sign code.
- acgourley 11y agoWould it be contradictory to be OK with this argument but against the logic of the Citizens United ruling?
- morninj 11y agoNo, 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 11y agoI 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_Pacific_Railroad_Co. 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_States_Constitution https://en.wikipedia.org/wiki/Freedom_of_association#United_...
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- swehner 11y agoI 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.
- morninj 11y agoIf writing code isn't speech, what is it?
- EGreg 11y agoSpeaking!
- hunter2_ 11y agoIs 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?
- sigmar 11y agoWhen we refer to 1st amendment free "speech," we are not referring to the physical act of speaking words, but to the general act of expression
- colejohnson66 11y agoIf your reason for flipping those switches is to express an idea, then yes. If for some reason the number 7 was outlawed and you decided to flip those switches to 00000111, you'd be protected by the First Amendment. Before someone says outlawing a number won't ever happen, look up what a Free Speech Flag[1] is. [1]: https://en.wikipedia.org/wiki/Free_Speech_Flag https://en.wikipedia.org/wiki/Free_Speech_Flag
- hunter2_ 11y ago> your reason Does it come down to exclusively my reason? My reason might go uncommunicated, and if so, does someone else get to infer my reason? Setting the state of physical switches being considered an expression of an opinion/idea (speech) also seems like a slippery slope toward all other physical actions being speech if "my reason" agrees.
- TerryADavis 11y agoThe first amendment will probably disappear after God talks for a year,nonstop and people say, "no religion is a joke". I have authority like a building inspector. I can command Intel to make God's temple perfect and beautiful. We will have a religion like the Church of England. TempleOS will be critical. Building inspector. If Intel fails to make God's temple beautiful and perfect and glorious, they are in violation of building codes.
- rayiner 11y agoNote 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 11y agore 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 11y agoThey only have to do so if they want to sell cigarettes, which is not a constitutional right.
- occamrazor 11y agoSelling iPhones isn't a constitutional right either.
- lmm 11y agoCongress could make that illegal if they wanted. They could e.g. make it illegal to sell a device that doesn't accept code updates signed with a particular government key. But they can't do it retroactively.
- rhizome 11y agoCongress can do that. Cigarettes are a special case with their own law and everything: https://www.ftc.gov/enforcement/statutes/federal-cigarette-labeling-advertising-act-1966 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.
- pklausler 11y agoThe 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.
- iopq 11y agoThat would be MUCH worse, since it allows the government potentially hack anyone's iPhone.
- vectorjohn 11y agoBut 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.
- iopq 11y agoYes, and I totally trust the government wouldn't modify that version to have it work on everyone's iPhone. Because they'd never just remove that restriction by editing the program, that would be wrong!
- vectorjohn 11y agoThat would be impossible. The code must be signed, so it cannot be tampered with. That's why they need Apple's help.
- iopq 11y agoWhat's the guarantee that signed code won't be used on other iPhones?
- pklausler 11y agoYes, 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.
- hoi 11y agoJust wondering, what would be the legal case if this was not the USA?
- ReedJessen 11y agoDoesn'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 11y agowell there there is also the option of 'just' refunding the cars
- jumpbackwards 11y agoHopefully a software fix doesn't compel a new ideology of speech: just a better explained form of what they've already said.
- sbuttgereit 11y agoNot 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 11y agoThat 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 11y agoCU 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.
- studentrob 11y agoI 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.
- cm2187 11y agoSort 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 11y agoMost 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.
- TillE 11y agoThe 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.
- freyafff 11y agoWe have the US legislations simplified here according to here http://thefrejeleriexperiment.tumblr.com/ http://thefrejeleriexperiment.tumblr.com/ I think we need to be fully aware of our law before we are able to judge!
- freyafff 11y agoWe have the US legislations simplified here according to here http://thefrejeleriexperiment.tumblr.com/ http://thefrejeleriexperiment.tumblr.com/ I think we need to be fully aware of our law before we are able to judge!
- throwaway173197 11y agoCounterpoint: 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 11y agoA 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 11y agoWhy can we force automobile manufacturers to include seat belts and air bags?
- scelerat 11y agoThis story reminded me I had allowed my EFF membership to lapse. Fixed.