Is Code Protected By the First Amendment?

Is Code Protected By the First Amendment? thumbnail

Most of us have read, or at least read about, Apple CEO Tim Cook’s letter criticizing the FBI for ordering it to build a backdoor into the San Bernardino shooter’s iPhone. Fewer of us, however, have read its motion to vacate the order in the Court of Appeals on February 25, in which Apple introduced a new wrinkle: it’s arguing that “[u]nder well-settled law, computer code is treated as speech within the meaning of the First Amendment.”

In legal circles, this statement has caused quite a stir. Most experts think this issue is far from “well-settled,” and some even argue that protecting code with the First Amendment would be incredibly damaging in the long run. Law professor Neil Richards, writing in MIT Technology Review, argued that “if we were to accept the fantasy that Code = Speech, we would be putting our ability to regulate our fast-changing digital society in peril.”

But is the issue really worth all the fuss? To get the lowdown, we interviewed Bruce K. Adler, a retired lawyer from Arlington, VA whose legal practice involved products liability, commercial law, civil liberties, and Constitutional law.

DreamHost: Does Apple’s argument that code is a kind of protected speech hold up?

Bruce K. Adler: Well, the legal truth of the matter is that sometimes computer code is definitely speech and sometimes it is definitely not speech. But the courts are very clear about how that is to be determined. One must look at the nature of the given software and how it is or will be used in order to see if there is any “speech” involved.

For example, I send an email to a friend: I type it out, press “send”, and my computer relays it to my friend’s computer, where my friend sees and clicks on the message to read it. Throughout this process, the email exists as computer code. Is that code “speech” and thus protected under the First Amendment? Of course, it is.

But what is the reality of Apple’s situation? The new software it has been ordered to create will be installed on the given iPhone for the purpose of disabling certain security features that will allow the government to eventually discover the former user’s passcode. Where is there any “speech” going on here? Really, there is absolutely none. In the end, Apple “is speaking to” just the iPhone, to affect how it functions internally.

DH: So it’s unlikely the court will uphold the code = speech argument. Does that mean Apple will probably lose?

BKA: No, it doesn’t. It’s not Apple’s only argument or even its main one. The motion papers run a total of 36 pages, and of those, the free speech arguments occupy just over 2 pages. And so the free speech issue clearly appears to be a secondary argument, and in fact only comes after the motion’s extended 18-page analysis of the “All Writs Act”, which is the federal statute on which the District Court based its prior order to require Apple to create the new software. Further, the free speech section really doesn’t make formal arguments; it’s mostly just general legal assertions followed by bald legal conclusions that are missing a factual analysis in between.

It certainly seems, then, that Apple is mostly hoping at this juncture to win its motion on the basis of statutory not constitutional law. In that view, the free speech and subsequent due process claims are just fail-safe claims, which if necessary, in the event Apple loses its motion, could ultimately help win over the interest of the U.S. Supreme Court.

DH: What are the chances that the Supreme Court would actually hear this case if Apple loses its motion?

BKA: Given the nature of the case overall, I would be surprised if the Supreme Court were interested. Normally the Court wants to take cases in which it has an opportunity to settle what has become unsettled law. For instance, if two Courts of Appeals have decided similar cases differently. This case doesn’t necessarily present that kind of conflict.

That said, the application of the All Writs Act here might be seen as novel. It’s an 18th-century statute that can and has been used to require third parties to help courts enforce their orders. In this case, the District Court is requiring Apple to assist the government in carrying out its search warrant for the particular iPhone. What is arguably special in this regard is that the government doesn’t just want advice and know-how, but wants Apple to expend a significant amount of creative labor, too. That’s an unusual use of the statute, perhaps expanding its legal boundaries too much.

But in a situation like this, in the wake of a terrorist attack, I suspect the Supreme Court would prefer waiting to see whether the same legal situation arises in other contexts. Whenever it takes a case, it wants to resolve something finally, often after there’s already been a fair amount of analysis in the lower courts.

Still, what I’ve been discussing up to now, following your question, is what happens if Apple loses its motion. If Apple wins, meaning the government loses, I do think the Supreme Court would take the case. For otherwise the information on the iPhone might then never be retrieved, and who knows what’s on it. So I think the Court would feel a responsibility to finally decide this matter itself.

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DH: What does this case mean for the future?

BKA: We’re coming to a crossroads now where we’re going to have to make some tough decisions about privacy. We’ll be hooked into the Internet not just when we’re on our smartphones or logged on to a computer, but all the time. Our houses, our cars, everything is going to be connected through the Internet of Things.

As we create this new infrastructure, that point of conflict is going to grow. We’re going to be forced to choose about how much control the government is going to be able to have over those devices vs. how much freedom we individuals are going to be able to have to use them as we wish. At that point, the code vs. speech question becomes critical, because it’s going to have a huge say in how private our lives are.

It could very well be that one day we’ll look back and say, oh that Apple case. Peoples’ self-awareness really began to pick up then, that’s when these big issues literally ‘hit home’ for all of us.

Photo of Jason Cosper
About the Author:

Jason is DreamHost’s WordPress Product Advocate, based out of Bakersfield, CA. He is currently working on making our DreamPress product even better. In his free time, he likes to curl up on the couch and watch scary movies with his wife Sarah and three very small dogs. Follow him on Twitter.