Computer code is incomprehensible to anyone without programming skills, but Apple argued in a court filing on Thursday that code is a form of speech. So, the company contends, the governmentâs order to crack a locked iPhone used by one of the San Bernardino killers would violate Appleâs First Amendment rights.
Apple, its lawyers contend, âwrote code for its operating system that reflects Appleâs strong view about consumer security and privacy.â Changing its code, they add, would âundermine those valuesâ â a position that raises several legal questions.
Q. What is the legal argument?
A. âThe basic concept is that computer code is a way of expressing an idea,â said A. Michael Froomkin, a law professor at the University of Miami.
Apple elaborates on that essential notion by saying that its code is expressing its corporate viewpoint on consumer security and privacy. If it loses this case, Apple suggests, the company would be forced to have its code change its digital tune â and corporate message.
âApple goes pretty far by saying its software has a viewpoint,â said Ryan Calo, an assistant professor at the University of Washington School of Law. âThatâs pretty novel here. But this case is unprecedented, so we shouldnât be surprised by novel defenses.â
Q. How unusual is Appleâs argument?
A. There are a number of cases in which the issue has come up. Most often, the technology has involved computer security and encryption software, similar to the current case.
In the 1990s, the National Security Agency wanted American computer makers to build a hardware âback door,â known as a Clipper Chip, that could be unlocked by the government. First Amendment and other protests were made, and the government eventually backed down. The Clipper Chip episode was not litigated.
A case that was taken to court involved Daniel J. Bernstein, who was a graduate student at the University of California, Berkeley, when he wrote an encryption program called âSnuffle.â At the time, the Arms Export Control Act and International Traffic in Arms Regulations were expansively interpreted, and the government took the stance that even academics, like Mr. Bernstein, presenting or publishing research abroad were criminals. Mr. Bernstein filed suit.
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But a Federal District Court in Northern California ruled in Mr. Bernsteinâs favor in 1996, agreeing that his code was speech and protected by the First Amendment. The export controls as applied to encryption software were eased later.
In its filing, Apple cited the Bernstein case, among others, and declared it was âwell-settled lawâ that computer code is protected speech.
Q. But is Appleâs argument surprising?
A. No, legal experts say. Apple has signed up Theodore B. Olson as a key member of its legal team. A renowned litigator, Mr. Olson successfully argued before the Supreme Court that money is a form of free speech in Citizens United v. Federal Election Commission.
Good lawyers make every plausible argument they can, and this one is certainly plausible.
Q. How might the government reply?
A. Mr. Froomkin of the University of Miami said the government would probably make two points. First, he said, the Supreme Court has never ruled that code is speech. Second, Mr. Froomkin said that the government might contend that Apple was going too far in its claim. âThe government will tell Apple, âYouâre not being denied the ability to speak,â â he said.