I have been saying that there is no Constitutional issue in the case In The Matter of the Search of an Apple Iphone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, the so-called “Apple v. FBI” litigation, because the government has a warrant to search the telephone and the owner of the phone consents to the search. I stand corrected. There is no Fourth Amendment issue in the case.
Apple is predicting that it will raise a First Amendment claim when it files its pleading in court. The Los Angeles Times reports:
“They [the Department of Justice] are seeking a court order to compel Apple to write new software, to compel speech,” [Apple attorney] Boutrous said in a brief interview with The Times.
Boutrous said courts have recognized that the writing of computer code is a form of expressive activity — speech that is protected by the 1st Amendment.
If the argument is that computer code is speech, the First Amendment prohibits the government from compelling speech, therefore the government may not compel Apple to provide code/speech, then Apple is making a very odd argument.
Of course the government can compel speech. It does so every day. Every subpoena is a court compelling speech. True, sometimes the Fifth Amendment right against self incrimination sometimes overrides a subpoena, but that has nothing to do with the First Amendment. Surely, writing words and numbers on a piece of paper to convey information is speech. Yet, try refusing to fill out your tax return on the grounds that the First Amendment forbids the government from compelling speech. You’ll end up having your assets seized and going to jail, much the same as what Apple executives face if they refuse to comply with a federal court order at the end of the adversarial process. So far, Apple has not failed to comply with the court order in this case. The order compelling Apple to assist in the search specifically invites Apple to challenge its legality as unduly burdensome within a certain time. Apple is still within that (extended) time.
When we reach the end of the litigation, however, of course Apple must comply with the resulting court order, if any. We are a nation of laws, not corporations, and the idea that the law does not apply in cyberspace was buried in the 1990’s.
- William C. Snyder
Leave a Reply