Apple, Justice and the First Amendment

March 4, 2016

Apple and the dozens of Apple supporters who filed amicus briefs Thursday in federal court in Riverside, California, have left little doubt that ultimately, the Supreme Court will be called upon to decide whether the government may rely on the 1789 All Writs Act to compel Apple to help investigators access data from the phone of San Bernardino shooter Syed Farook.

The reach of the All Writs Act – a provision that permits federal courts to issue “necessary or appropriate” orders to enforce their authority – necessarily invokes fundamental constitutional questions about the powers of the judicial, legislative and executive branches, as U.S. Magistrate Judge James Orenstein explained in an elegant opinion this week in a different dispute between Apple and the Justice Department. There are also Fourth and Fifth Amendment implications at stake. Though federal investigators usually seek All Writs Act orders to aid in the execution of search warrants – so Fourth Amendment prohibitions on unreasonable searches are not formally part of the case – but as Google, Microsoft, Facebook, Amazon and several other Apple backers pointed out in an amicus brief by Hogan Lovells, “the principles that inform the Fourth Amendment analysis are instructive here. Both doctrines, after all, assess the reasonableness of government intrusions onto private property.”

Several of Thursday’s amicus briefs agreed with Apple’s lawyers at Gibson Dunn & Crutcher and ZwillGen that Apple’s Fifth Amendment rights may be compromised by an All Writs Act directive compelling the company to override security encoded into a device it manufactured. (Many amici also noted that, as a practical matter, requiring third parties to provide data security master keys might expose them to accusations by other government agencies of providing inadequate security.) A brief by Durie Tangri on behalf of 32 law professors argued that the government “seeks to deprive Apple of both property and liberty.” The American Civil Liberties Union also homed in on the Fifth Amendment in its amicus brief for Apple: “The Fifth Amendment imposes a limit on the nature of assistance that law enforcement may compel, and the assistance sought here plainly exceeds that limit, “the ACLU brief said. “At the very least, the fact that the government’s interpretation of the All Writs Act would raise serious constitutional questions supplies an additional reason to reject the government’s sweeping construction of the Act.”

For me, as a journalist, the most interesting constitutional question in the Apple case is compelled speech under the First Amendment, an issue Reuters highlighted even before Apple discussed it in the company’s filing last week. According to Apple, computer code is well recognized as speech subject to the First Amendment. Here, Apple argued, the government wants to compel Apple to write computer code, which is tantamount to compelling speech by the company. Under 1994 Supreme Court precedent in Turner v. FCC, Apple said, speech compelled by the government is subject to “exacting scrutiny” and may only be upheld if it is narrowly tailored to advance an overriding state interest. Here, Apple said, the government has a strong interest in investigating terrorism, but hasn’t shown that forcing Apple to write software to override the phone’s security will serve that interest. Moreover, the compelled speech would be unconstitutional “viewpoint discrimination,” according to Apple, because Apple wrote the software for the operating system on Farook’s phone, it deliberately omitted “a back door that bad actors might exploit.”

At least three of Apple’s amici – the Electronic Frontier Foundation, the Center for Democracy and Technology (represented by Wilson Sonsini Goodrich & Rosati) and the Media Institute (represented by Covington & Burling) – also made the First Amendment a centerpiece of their opposition to the All Writs Act order compelling Apple’s assistance. “The order at issue would not merely force Apple into an act of creative code writing, it would require the company to speak in ways contrary to its basic principles and values, and in a manner that undermines previous assurances the company has given its customers about the security controls of its product,” the Center for Democracy argued. EFF, citing case law involving the language of license plates in New Hampshire and the pledge of allegiance in public schools in West Virginia, said the government cannot force citizens to be “hypocrites” and espouse a viewpoint they do not hold.

“This case involves technological communication in ways that many speech cases do not. But the form of communication does not alter the fundamental First Amendment principles at stake,” the EFF brief said. “The values that underlie the compelled speech doctrine – freedom of thought and integrity in one’s beliefs – are as fundamental here as in any other context. If Apple were required to declare verbal support for the government’s belief that technological backdoors or other forms of mandatory access by the government are necessary, such as in a blog post or public testimony, it would be easy to spot the First Amendment violation. That Apple communicates in the language of computer code and Apple’s digital signature verifying that code, rather than spoken words, in a parade, on a T-shirt or a license plate, does not make the prohibition on compelled speech any less applicable.”

Finally, the Media Institute brief explained how the First Amendment implications of this case could extend to journalists. If Apple is forced to abridge its own First Amendment rights and facilitate government access to secure devices, the brief said, the news-gathering efforts of reporters who rely on those devices will be placed at risk. An All Writs Act order against Apple “could be construed to authorize prosecutors with access to digital accounts and devices used by journalists to conscript third parties into efforts to compromise those accounts and devices, without any constitutional limitations,” the Media Institute argued. “If the order (against Apple) becomes a precedent, future orders under the All Writs Act will be sought to be applied against media companies as government authorities seek to acquire access to confidential information stored on mobile devices used by journalists.”

It’s way too early to say what issue in this struggle between national security and data privacy will pique the interest of the Supreme Court, if any does. You can see why many people, including Apple’s lawyers and Judge Orenstein, believe Congress ought to legislate this question rather than leaving it up to the courts.

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