More tech companies — including Twitter, Airbnb, eBay, LinkedIn, Reddit, and Square — have joined Apple in its fight to preserve device encryption, reports re/code.
Some 16 companies whose technology collectively reaches hundred of millions of people have filed a brief that argues arguing that the government’s use of the centuries-old All Writs Act to force Apple to undermine its own carefully constructed device security is unprecedented and without legal basis.
What’s more, the Media Institute — a nonprofit research foundation working to “advance sound communications policy, freedom of speech, and excellence in journalism” — has filed an amicus brief in a California federal district court today, saying that the FBI’s attempt to order Apple, Inc. to write code to “unlock” the contents of an iPhone amounts to compelled speech under the First Amendment, and therefore must meet the standard of strict scrutiny.
“This case presents a fundamental question about the government’s authority to lawfully require a private actor to speak consistent with the First Amendment,” the brief states. It notes that federal courts have determined that computer code is speech protected by the First Amendment.
By forcing Apple to create speech that it would otherwise not make and with which it disagrees, the FBI’s order falls squarely within the jurisprudence of compelled speech and requires the FBI to meet the heavy burden of strict scrutiny. What’s more, the FBI’s order undermines the interests of the news media in protecting their autonomy in government investigations and in maintaining confidential communications. The authority the FBI seeks under the All Writs Act would place the independence of the press at risk, the brief states.
The Institute notes that the federal court could avoid the difficult First Amendment issues presented by the order by ruling narrowly and adopting a proper interpretation of the All Writs Act, which would deny the FBI order before reaching the more difficult constitutional question.
Yesterday, The American Civil Liberties Union, Access Now and the Wickr Foundation called on a U.S. federal judge to approve Apple’s request not to be forced to build software to help the FBI unlock an iPhone used by one of the shooters in the San Bernardino attack, reports Reuters.