29 Feb We asked a First Amendment lawyer if Apple’s ‘code is speech’ argument holds water. Here’s what he said.
Apple on Thursday filed a motion to vacate the Federal Bureau of Investigation’s order that it help unlock an iPhone used by one of the San Bernardino shooters.
In the 65-page document, Apple outlined many reasons why it felt it shouldn’t comply with the government’s request. One of these is that doing so would violate its rights under the First Amendment.
“This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment,” the filing said. In other words, the government’s request that Apple write and authorize a program that circumvents iPhone security would essentially force Apple to say, in code, something with which it fundamentally does not agree.
Wayne Giampietro, a Chicago-based lawyer and longtime member of the First Amendment Lawyer’s Association, said that Apple is absolutely on solid ground with its argument.
“There are a lot of cases saying that the government cannot compel private people to say things,” he said. A farmer, for example, can’t be forced by the government to contribute to groups that promote farming or agriculture.
“The government can’t make people do things that they don’t want to do,” he said. “I think that’s broader than the First Amendment, but that’s certainly a big part of it.”
And as for the assertion that code is, essentially, speech? Giampietro said Apple’s on strong footing there as well.
“I don’t see any difference between code and any kind of expression,” he said. “It’s a way that people communicate.”
That’s certainly Apple’s view. The Apple filing contains a statement from its manager of user privacy, Erik Neuenschwander, who compares coding to any other creative process.
“There are a number of ways to write code to accomplish a given task, some more efficient and more elegant than others,” he wrote. “Moreover, writing software is an iterative, revision intensive, and mentally challenging task, just like writing essays, whitepapers, memos and even poems.”