Apple’s Odd First Amendment Argument

I have been saying that there is no Constitutional issue in the case In The Matter of the Search of an Apple Iphone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, the so-called “Apple v. FBI” litigation, because the government has a warrant to search the telephone and the owner of the phone consents to the search.  I stand corrected.  There is no Fourth Amendment issue in the case.

Apple is predicting that it will raise a First Amendment claim when it files its pleading in court.  The Los Angeles Times reports:

“They [the Department of Justice] are seeking a court order to compel Apple to write new software, to compel speech,” [Apple attorney] Boutrous said in a brief interview with The Times.

Boutrous said courts have recognized that the writing of computer code is a form of expressive activity — speech that is protected by the 1st Amendment.

If the argument is that computer code is speech, the First Amendment prohibits the government from compelling speech, therefore the government may not compel Apple to provide code/speech, then Apple is making a very odd argument.

Of course the government can compel speech.  It does so every day.  Every subpoena is a court compelling speech. True, sometimes the Fifth Amendment right against self incrimination sometimes overrides a subpoena, but that has nothing to do with the First Amendment.  Surely, writing words and numbers on a piece of paper to convey information is speech.  Yet, try refusing to fill out your tax return on the grounds that the First Amendment forbids the government from compelling speech.  You’ll end up having your assets seized and going to jail, much the same as what Apple executives face if they refuse to comply with a federal court order at the end of the adversarial process.  So far, Apple has not failed to comply with the court order in this case.  The order compelling Apple to assist in the search specifically invites Apple to challenge its legality as unduly burdensome within a certain time.  Apple is still within that (extended) time.

When we reach the end of the litigation, however, of course Apple must comply with the resulting court order, if any.  We are a nation of laws, not corporations, and the idea that the law does not apply in cyberspace was buried in the 1990’s.

  • William C. Snyder
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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. She is the 2018-9 Editor in Chief of the Syracuse Law Review, as well as a member of the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography


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