First amendment rights will be an important ingredient of Apple’s legal strategy to battle a court order intended to force the Cupertino firm to aid the FBI in unlocking an iPhone 5c used by one of the shooters in last years San Bernardino massacre.
Theodore Boutrous, Jr., one of two high-profile attorneys Apple hired to handle its case, said a federal judge overstepped her bounds in granting an FBI motion that would force the company to create a software workaround capable of breaking iOS encryption, reports the Los Angeles Times.
U.S. Magistrate Judge Sheri Pym last week issued an order saying Apple must aid the FBI in its efforts to unlock the iPhone in question. Government lawyers used a strategy based on the All Writs Act of 1789, a statute the FBI has reportedly used in at least nine other cases involving iOS devices.
The All Writs Act, while 227 years old, has been updated over time to reflect a variety of modern issues, most recently used as a tool for anti-terrorism operations. The act is often used to grant federal courts the power to issue orders, when all other judicial tools have been exhausted.
“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 Times. “It is not appropriate for the government to obtain through the courts what they couldn’t get through the legislative process.”
Boutrous noted courts have recognized that the writing of computer code as a form of expressive activity. Such speech, says Boutrous, is protected by the 1st Amendment. (Boutrous was referring to the 1999 ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals, that source code relating to an encryption system was protected as free speech.)
Apple has until this Friday to file its response to the court order.
