Apple has raised some interesting, and potentially winning, legal arguments in its motion to overturn a judge’s order requiring the company to help the FBI unlock the iPhone of a mass shooter.
The FBI's request for Apple to write new software to defeat password protections on the phone violates the company’s free speech and due process rights, Apple argued Thursday in its motion to vacate Magistrate Judge Sheri Pym’s Feb.16 order.
Apple has a chance to prevail in court, especially with its First Amendment free speech argument, said Jennifer Dukarski, a technology lawyer with the Butzel Long law firm in Ann Arbor, Michigan.
Several past court cases have looked on software code as a form of speech, although the legal record is mixed, she said. Apple argues the court cannot force speech from the company, particularly when the speech would be against Apple's own interests.
“Clarity on this issue would help all who write and defend those who write code,” Dukarski said. “If the code is treated as speech, I think Apple has a strong position against compelled speech.”
Still, the company has an “uphill battle” with Pym after her initial order requiring Apple to help unlock the phone, said Braden Perry, a lawyer specializing in federal enforcement cases with Kennyhertz Perry in Kansas City.
The First Amendment argument could carry weight because the government needs a “compelling” interest to force Apple to write new code, he said. Apple argues that the FBI has produced “nothing other than speculation that the compelled speech could produce fruitful information.”
It’s important to consider the bigger picture than this one case, Perry added. “The majority of the argument is about balancing the needs of law enforcement with the privacy and personal safety interests of the public,” he said.
Following are some of the main legal issues.
What’s the FBI’s argument? The FBI’s request relies heavily on the All Writs Act, a U.S. law dating, back to the late 1700s, allowing courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
The All Writs Act gives judges wide latitude to compel parties to cooperate in cases before them, but there are limits. The judge must have no other legal options available, the target of the writ (Apple) must be closely connected to the case, and the court order cannot impose an undue burden.
Apple’s participation is necessary to access the phone, Department of Justice lawyers representing the FBI argue. “Here, the government has obtained a warrant to search the phone of a mass murderer, but unless this Court enforces the Order requiring Apple’s assistance, the warrant will be meaningless,” DOJ lawyers wrote in a stinging rebuke of Apple filed Feb, 19.
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