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Apple To Argue First Amendment Rights To Fight Government Requests For iPhone Unlock And Weaker iOS

24 February 2016, 7:34 am EST By Alexandra Burlacu Tech Times
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Amid mounting pressure from the FBI to unlock the iPhone of a San Bernardino shooter, Apple reportedly wants to exert its First Amendment rights to stave off federal orders.

A federal magistrate recently issued an order to force Apple unlock the iPhone 5c of San Bernardino shooting suspect Syed Rizwan Farook and aid the FBI in its investigation. That directive prompts Apple to create a bypass to an iOS passcode counter, or basically to architect a weaker OS that the FBI could hack.

The U.S. Justice Department even filed a motion in federal court to force Apple to comply with that magistrate order, arguing that Apple CEO Tim Cook's open letter made it clear that the company does not plan to cooperate as much as it should.

The thing is, Apple designed its iOS with security in mind, and iPhones automatically erase all data if someone enters the wrong passcode 10 times. The FBI is now getting desperate to get Apple's help because the passcode of the iPhone 5c belonging to the suspected San Bernardino shooter was changed within less than 24 hours after the phone got into FBI custody.

The encryption battle between Apple and the FBI is getting increasingly fierce, as neither side shows signs of backing down. The government insists Apple should grant them access to devices, while Apple is fervently opposing any kind of back doors or compromises in security.

All Writs Act vs. First Amendment

Preparing for a tough legal battle over encryption, Apple recently hired two free-speech lawyers — Theodore Boutrous and Theodore Olson — to represent it in court.

Discussing the recent magistrate order compelling Apple to help the FBI unlock the iPhone, Boutrous says the federal judge went too far when granting that FBI motion to force Apple create a software workaround that could break its iOS encryption.

The government cited the All Writs Act of 1789 as the legal foundation for its case, while Apple wants to argue First Amendment rights. More specifically, the company wants to convince the court that its software is not just a set of instructions, it's creative and unique work that expresses its point of view, and thus it should be protected under the First Amendment.

Apple will reportedly argue that code is a form of speech that should be protected. The company sees the government's order to write software workarounds for helping the FBI as a violation of its rights and philosophy, similar to forcing a journalist write a story on the government's behalf.

It remains to be seen, however, if Apple will be able to stave off the mounting pressure to architect an OS with weaker security and unlock the iPhone for authorities.

Reactions And Precedents

The whole encryption debacle has stirred mixed reactions, with some siding with Apple and others taking the government's side. Whistleblower Edward Snowden, Google CEO Sundar Pichai, Huawei and others are backing Apple in its pro-encryption battle, while San Bernardino victims, along with more than half of Americans, are reportedly on the government's side and believe that Apple should comply and decrypt the iPhone.

Meanwhile, the issue is gaining new dimensions. While the FBI initially said it is not asking for wider access to iPhones, just the iPhone 5c of the suspected San Bernardino shooter, it now came to light that the FBI is actually using the All Writs Act to force Apple to hack into 12 other iPhones.

It's safe to assume that if the FBI has its way, things will not stop here. Gaining access to even one single iPhone would cause a precedent and would set things in motion to a wider extent, with more such cases surely arising in the future.

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