March 3, 2016 | By Andrew Crocker and Jamie Williams

Deep Dive: Why Forcing Apple to Write and Sign Code Violates the First Amendment

EFF filed an amicus brief today in support of Apple's fight against a court order compelling the company to create specific software to enable the government to break into an iPhone. The brief is written on behalf of 46 prominent technologists, security researchers, and cryptographers who develop and rely on secure technologies and services that are central to modern life. It explains that the court’s unprecedented order would violate Apple’s First Amendment rights. That’s because the right to free speech prohibits the government from compelling unwilling speakers to speak, and the act of writing and, importantly, signing computer code is a form of protected speech. So by forcing Apple to write and sign an update to undermine the security of its iOS software, the court is also compelling Apple to speak—in violation of the First Amendment.

On February 16, a federal magistrate judge in southern California ordered Apple to write and sign the new code in support of the FBI’s ongoing investigation of last December’s San Bernardino shooting. The court granted the government’s request to require Apple to provide software to help unlock an iPhone 5c used by one of the shooters. The phone is encrypted with a passcode and protected by additional iOS security features the government says it cannot bypass. In an unprecedented move, the order requires Apple to create a brand new version of its operating system with intentionally weakened security features, which the government can then use to get into the phone.

On February 25, Apple filed a motion to vacate the Judge’s order. Apple argued that compelling it to create and sign code is an extraordinary expansion of the All Writs Act, the law the government is relying on in this case. Earlier this week, a judge in New York—in a different iPhone unlocking case involving an older version of iOS—denied a request under the All Writs Act that would have forced Apple to bypass the lock screen of a seized iPhone. The judge recognized that forcing Apple to unlock the phone would require an absurd interpretation of the All Writs Act.

But what the government is asking Apple to do in this case—i.e., force Apple and its programmers to write and sign the code necessary to comply with the judge’s order—is not just an unprecedented expansion of the All Writs Act that puts the security and privacy of millions of people at risk. It is also a violation of the First Amendment.

As we explain in our amicus brief, digital signatures are a powerful way of communicating the signer’s endorsement of the signed document—in this case, the custom iOS code. Due to the mathematical properties of digital signatures—invented in part by signers of our brief, including Martin Hellman and Ron Rivest—it would be very difficult to impersonate Apple without possessing the company’s secret signing key. Apple has chosen to build its iOS in such a way that its devices only accept iOS code signed by Apple, a design it believes best ensures user trust and strengthens the security of these devices. Since over 3 million phones were stolen in 2013 alone, the protections Apple is providing are important. By requiring Apple to sign code that undermines the security features Apple has included in iOS, the court’s order directly compels the company’s strong and verifiably authentic endorsement of the weakened code.

This is where the First Amendment comes in. The Constitution clearly prevents the government from forcing people to endorse positions they do not agree with. Whether that endorsement takes the form of raising your hand, signing a loyalty oath, putting a license plate motto on your car or, as here, implementing an algorithm that creates a digital signature, the problem is the same. As the Supreme Court noted in a case involving whether the government could force private parade organizers to include viewpoints they disagreed with, “[W]hen dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised.” As a result, government mandates requiring people to speak are subject to strict scrutiny—the most stringent standard of judicial review in the United States. 

Of course, the fact that Apple expresses its beliefs in the language of computer code and in digital signatures verifying its code implicates a set of cases where EFF pioneered the recognition that writing computer code is a form of, well, writing. In Bernstein v. DOJ and later in Universal City Studios, Inc. v. Corley, the courts agreed with us that, just like musical scores and recipes, computer code “is an expressive means for the exchange of information and ideas.” The fact that the expression comes in the form of code may implicate the level of regulation the government can apply, but not whether the code is in fact expressive.

Here, the problem is even more acute. Apple is being forced to actually write and endorse code that it—rightly—believes is dangerous. And in doing so, it is being forced to undermine the trust it has established in its digital signature. The order is akin to the government forcing Apple to write a letter in support of backdoors and sign its forgery-resistant name at the bottom. This is a clear violation of Apple’s First Amendment rights, in addition to being a terrible outcome for all the rest of us who rely on digital signatures and trustworthy updates to keep our lives secure.

The court will hear argument on Apple’s motion to vacate at 1:00 p.m. on March 22, 2016, in Riverside.  We hope the judge reconsiders this dangerous and unconstitutional order.

Special thanks to each of the technologists, security researchers, and cryptographers who signed on to our amicus brief.


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