Forcing Apple to unlock the iPhone of San Bernardino shooter Syed Farook would violate its constitutional right to free speech, the company argued Thursday in a court motion attempting to quash a court order requiring it to cooperate with the FBI.
Invoking U.S. Supreme Court rulings that the First Amendment protects “both the right to speak freely and the right to refrain from not speaking at all,” Apple’s lawyers argued that requiring the company to write software to bypass the security features of Farook’s phone “amounts to compelled speech . . . in violation of the First Amendment.”
“Apple wrote code for its operating system that reflects Apple’s strong view about consumer security and privacy,” the court filing said. “By forcing Apple to write software that would undermine those values, the government seeks to compel Apple’s speech and to force Apple to express the government’s viewpoint on security and privacy instead of its own.”
The free speech argument raises the stakes for what had already become a major test between law enforcement and privacy advocates over the limits of government intrusion into the growing world of sophisticated electronic devices. Courts have found in previous cases that computer code is protected speech under the First Amendment.
Other major technology players showed signs that they intended to take sides in the dispute. Microsoft on Monday pledged to file a court brief supporting Apple’s resistance to the FBI’s demand, and Facebook and Google indicated that they would the same by the deadline next week.
Meanwhile, FBI Director James Comey, in testimony before Congress, agreed with Apple’s contention that a ruling against the company would likely apply to dozens of other cases. He noted that a ruling in favor of Apple would leave the FBI unable to “read the communications of terrorists, gangbangers, pedophiles, all different kinds of bad people.”
Comey told the House Intelligence Committee that the debate over encryption versus security “is the hardest question I’ve seen in government.”
He said Apple had been cooperative in the San Bernardino case until the agency asked for help disabling the security features of Farook’s phone that would destroy data if the FBI tried 10 incorrect passwords. The FBI hoped to open the phone with a “brute force” computer program that would attempt all conceivable password combinations until it hit on the right one.
Comey conceded at the hearing that the case will create a precedent, saying “it will be instructive for other courts.”
That was one of the concerns Apple raised in its appeal.
“This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe,” Apple argued.
“Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote,” the company’s lawyers wrote.
Comey too urged Congress to take action.
“I think the larger question is not going to be answered in the courts and shouldn’t be, because it’s really about who are we going to be as a country and how do we want to govern ourselves,” Comey said.