In Apple’s battle with the FBI and the Department of Justice about unlocking (or not) a shooter’s iPhone, the Cupertino, California-based company will argue that the judge in the matter overreached in her use of an obscure law and infringed on the company’s 1st Amendment rights, reports The LA Times.
One of Apple’s attorneys, Theodore Boutrous says, at the heart of Apple’s response, will be an objection to the use of the All Writs Act as the legal basis of the order compelling the company to assist the FBI. The All Writs Act, first passed by Congress in 1789 but passed in its current form in 1911, is a United States federal statute that authorizes United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The U.S. government has revived the All Writs Act in cases against terrorists, notably to gain access to password protected mobile phones in domestic terrorism investigations.
“The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech," Boutrous told The LA Times.
The lawyer said courts have recognized that the writing of computer code is a form of expressive activity -- speech that is protected by the 1st Amendment. He indicated that Apple would argue that Congress, not the courts, is the proper venue for a debate about “the security and privacy of citizens and law enforcement needs.”
Bloomberg adds that Apple will argue that the digital signature it uses to validate code is protected by the First Amendment as free speech, which can’t be compelled in law. “That’s a fundamental First Amendment problem because it can’t compel speech,” said David Rivkin, a constitutional litigator at BakerHostetler.