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Electronic Frontier Foundation Communications Crime Encryption Government The Courts Apple

EFF's Cindy Cohn On Why 'Code Is Speech' Is Key To Apple vs. FBI 102

Posted by timothy from the forced-labor dept.
blottsie writes: In a series of court battles in the late 1990s and early 2000s, Cindy Cohn represented plaintiffs challenging restrictions on DVD copying and the publication of cryptographic code. In all three cases—Bernstein v. United States, Universal City Studios v. Reimerdes, and Junger v. Daley—federal courts held that computer code merited protection under the First Amendment. Cohn, now the executive director of the Electronic Frontier Foundation, endorsed Apple's repeated citations of her cases in its fight against a court order to unlock a terrorism suspect's iPhone for the FBI. But she said that the controversial iPhone-unlocking order impinged even further on Apple's free-speech rights than the restrictions in her cases.
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EFF's Cindy Cohn On Why 'Code Is Speech' Is Key To Apple vs. FBI More

EFF's Cindy Cohn On Why 'Code Is Speech' Is Key To Apple vs. FBI

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  • Its weird to me that they could compel someone from a corp to open a safety deposit box but write a few lines of code would be a no-go.
    • The court's have also compelled corporations to "say" many many things before. From food labels and health warnings to apology letters.

      http://www.phonearena.com/news... [phonearena.com]

      • Re: (Score:2)

        by gweihir ( 88907 )

        Impressively clueless! "Giving information" and "force to say something specific" are two entirely different things. And of course "apology letters" only apply in the presence to wrongdoing on the part that has to write the letters, so they are completely irrelevant here.

    • You find it weird that law should stop people from taking certain actions and newer forbid people from speaking? Really?

      You must have been flabbergasted the first time you heard "Sticks and stones may break my bones. But words will never harm me."

      For pretty much everyone else, the difference between action and speech is pretty clear and the identification of speech-like actions as one or the other is the only contentious point. Is writing an action? Or speech. And drawing? Painting? ...Coding?

      The problem is

    • Re:Action vs Speech (Score:4, Insightful)

      by Anonymous Coward on Tuesday March 01, 2016 @10:12AM (#51614889)

      You don't see a difference between being ordered to hand over existing information and being court ordered to create a new and patentable, never before existing technology? When did anyone ever say that a few lines of code is all it would take?

      How about subpoenaing a new invention by the builders of a safe deposit box to force open their vault? The design, engineering, manufacturing, testing, and delivery of the equipment - yeah, that's something you can subpoena.

      Try harder.

      • Sure, accomodation (Score:1)

        by Anonymous Coward

        Given that it would be much easier to compel apple to hand over signing keys and documentation, I think this is a reasonable compromise. In fact, if Apple does indeed refuse to comply with the writ; it is reasonable and appropriate for the signing keys and documentation necessary to be demanded. The judge made a reasonable ruling, and the FBI made a reasonable request that balanced the need for search with the need for Apple to maintain security. If you read the order, the judge did not demand that Apple gi

    • Re:Action vs Speech (Score:5, Insightful)

      by gurps_npc ( 621217 ) on Tuesday March 01, 2016 @10:24AM (#51614987) Homepage
      Then you don't have any idea what coding is.

      First, it's not a few lines of code, it's an entire application that does not exist. If it were a few lines of code, then they would do it themselves.

      Second, it's not just a code, it's specific, propriety code involving extreme company secrets. It's the kind of stuff that if it got out, would make their existing product worthless. It's the equivalent of asking Coca Cola for their secret formula. No, actually, that formula is mostly hype. Say, it's the equivalent of asking Marvel to give out an uncut edition of Dead Pool to the Pirate Bay a week before it opens in theaters.

      Also note, the feds can still do this themselves, without Apple's help - it will just cost a load of money. Maybe $10 million. So they are trying to destroy Apple's reputation - worth a lot more than $10 million, just to save themselves $10 million.

      Finally, it's not just Apple's Reputation on the line, nor is it just their business. It's international law and precedent. What the US can do to Apple, other countries can do to all other companies. I.E. If we let the feds force Apple to create an entirely new security destroying product, then China can force any company that wants to manufacture or sell in China to do the same.

      It's a bad idea to make Apple do this, and the only people that think making Apple do it have not thought through all the obvious and clear consequences.

      Mainly because a bunch of people in the federal government fed you a bunch of obvious lies (it's only ONE phone and we can't do it by ourselves).

      The phone should definitely be cracked open - by the NSA without any assistance from Apple.

      • I'd take it one step farther: If it is possible to write this code, and the NSA hasn't already done it, then there are a bunch of geeks out there that aren't doing their job!!! Personally, I think the whole issue is a disinformation campaign to convince criminals their data is safe, when in reality remote access backdoors have already been put in place.

    • Its weird to me that they could compel someone from a corp to open a safety deposit box but write a few lines of code would be a no-go.

      The two things are not remotely comparable in this case. What is being asked of Apple is equivalent to creating a master key to open all existing safety deposit boxes in perpetuity. To my mind that is a huge overreach by the government. If the government with its own resources can crack the encryption then so be it but I see no reason why Apple should be compelled to assist them in harming their own product and the privacy of millions in the process. If Apple could just open the one and no others then i

    • Lets make your metaphor a little closer to what's going on here:

      "It's weird to me that they could compel someone who designed a safety deposit box that has absolutely no other way to open it without destroying the contents inside to open it, against their own business wishes and policies, where they would have to manufacture a tool to do so at their own expense because it doesn't currently exist."

      It's a little different than you are portraying.

    • Its weird to me that they could compel someone from a corp to open a safety deposit box but write a few lines of code would be a no-go.

      Is it also weird to you that you can copyright code but you can't copyright opening a safety deposit box? Both may be actions, but only one of them produces speech.

  • Code is not speech (Score:3)

    by NotDrWho ( 3543773 ) on Tuesday March 01, 2016 @10:04AM (#51614809)

    Because if it were, monkey's couldn't code. And then how would you explain most Microsoft software?

    • Re: (Score:2)

      by gweihir ( 88907 )

      Microsoft has monkeys that can code? Not consistent with the observable lack of code-quality on their part. More likely, they use rabbits or some other species that is so stupid they can only survive by reproducing like crazy.

  • Maybe "speech" will be limited to trademark and copyright, an no longer be subject to patents.
    • "Speech" has been copyrighted for centuries. Any book, play, movie, or song published in the last couple centuries. How is software code any different ? If the FBI was to say that J.K Rowling must write a volume of the Harry Potter series in which IS/ISIS/ISIL/Daesh is thrashed by a bunch of teenage wizards because it would improve national security, how would that go over ? What if the NSA was to say all movies from Hollywood must reflect a theme of the superiority of the USA ? Forcing speech, of any type
  • Mix and match from the list below.
    Enjoy the cognitive dissonance of the 21st centurmary!

  • You can't be forced to testify in court. How is this not the same thing?

    • Re: (Score:3)

      by Holi ( 250190 )
      You can most certainly be forced to testify in court, that's what a subpoena is. The 5th Amendment says you cannot be forced to testify against your self, something Apple is not being asked to do.

      • Re: (Score:3)

        by gweihir ( 88907 )

        You cannot be forced to make thinks up when testifying. You cannot be forced to give expert-witness testimony that requires analysis work and conclusions. You can only be forced to describe the truth as it is known to you.

    • You can't be forced to testify in court. How is this not the same thing?

      You can't be forced to testify AGAINST YOURSELF. You absolutely can be forced to testify against someone else in most cases. The 5th amendment does not apply to evidence obtained legally. If your phone contains evidence of a crime you committed and the police can obtain this evidence through approved legal processes then it can (and will) be used against you. They can't force the defendant to reveal the password but if they obtain it some other legal way then the evidence can be used. The 5th amendment

      • Re: (Score:2)

        by gweihir ( 88907 )

        No, you CANNOT be forced to testify against somebody else. You can only be forced to describe the truth as it is known to you. If that happens to be bad for somebody else, that is an effect of the situation.

        • No, you CANNOT be forced to testify against somebody else. You can only be forced to describe the truth as it is known to you.

          A distinction without a difference depending on who is doing the questioning. Furthermore testimony is routinely not truth and even when it is it may not end up as your version of the truth. Any lawyer worth his diploma can frame the questions and twist your answers to suit his narrative of "the truth".

  • That is a bizarre argument. Sure, code can be speech. But compelling people to speak is probably the primary function of court orders. If code were just speech, it is hard to see why the FBI shouldn't be able to compel Apple to speak to them and give them the signing keys and the source code. In fact, the only real objection to such court orders is that they may be an "undue burden".
    • Umm high 5th Amendment. The government CANNOT compel anyone to speak. But if you had bothered to READ the article, instead of pull something out of your ass, you would have read how code as speech argument has been used in court. Reading is fundamental Potsy.

      • Umm high 5th Amendment. The government CANNOT compel anyone to speak..

        The government can compel many people to speak. It simply can't compel you to self-incriminate. How does demanding Apple's encryption keys (even if the government were doing that) amount to "self-incrimination"?

        But if you had bothered to READ the article, instead of pull something out of your ass, you would have read how code as speech argument has been used in court.

        Yes, and if you bothered to read my response, you'd understand why I

        • Re: (Score:3)

          by msauve ( 701917 )
          A person or corporation can be compelled to testify about facts they know about. That's quite different than compelling speech which creates new facts.

          • A person or corporation can be compelled to testify about facts they know about. That's quite different than compelling speech which creates new facts.

            "oh_my" claimed that the government cannot compel speech; I corrected him and pointed out that it can, and that it does so all the time. Nowhere did I say that that the government was limited to compelling speech. In fact, court orders can compel both speech and other actions.

            In any case, the government could easily retreat to simply demanding that Apple

        • Re: if code is speech... (Score:1)

          by Anonymous Coward

          ...nor shall private property be taken for public use, without just compensation.

          That's the part of the fifth they refer to (also called the takings clause).

          Might I suggest in the kindest and most respectively constructive way that you should reverse your craniorectal inversion, obtain a copy of the text, and carefully read the entire thing.

          The government is attempting to compel Apple to provide, free of charge, several man-months of senior developers' time. This has a monetary value.

          This is no different t

      • Wrong amendment, I think: If the First Amendment protects freedom of speech, then surely it protects the freedom to remain silent as well.

    • Sure, they can be compelled to speak. But the FBI cannot decide what exactly they say.

      • Sure, they can be compelled to speak. But the FBI cannot decide what exactly they say.

        For such court orders, you have to answer the question, invoke the 5A, or face a contempt of court charge. The only other way out is to claim that compliance would be an "undue burden", which is what Apple is attempting.

    • Re: (Score:2)

      by gweihir ( 88907 )

      No. This court order would compel people to write a novel, make up a story, etc. That cannot be compelled. You can only compel them to share the truth as they know it, not to make up things.

      • You can only compel them to share the truth as they know it, not to make up things.

        Yes, the court could compel Apple to share their current iOS source code and their current iOS signing keys; nothing needs to be made up.

        • Re: (Score:2)

          by gweihir ( 88907 )

          And you have apparently not understood a single thing of what this case is about. Because that is NOT AT ALL what the FBI is asking for.

          • And you have apparently not understood a single thing of what this case is about. Because that is NOT AT ALL what the FBI is asking for

            Hence, my use of the subjunctive: "if the court fails to compel Apple's cooperation, the court could..."

            English: try learning it.

  • The goal is clear (Score:5, Informative)

    by oh_my_080980980 ( 773867 ) on Tuesday March 01, 2016 @11:04AM (#51615377)
    “The government is seeking legal precedent here,” she said. “There's nothing about the way the government has argued this case that would limit it to this particular case, that would limit it to terrorism investigations, that would limit it to Apple or limit it to these things. That's not what they're aiming for here. It's very clear from the papers. They’re saying the All Writs Act lets them do this or anything like it.”

    http://www.dailydot.com/politi... [dailydot.com]

    It's nice to see people calling bull-shit on the argument that the government isn't seeking a precedent.

    • Right. I think some people are arguing about the particular case ("Why don't they want to let the FBI access this particular phone? It was used by terrorists!") and missing that this is really an issue of the precedent that it creates. Speaking generally, can the government use the All Writs Act to force a software developer to develop new software, and what are the consequences if the developer doesn't comply?

      It just doesn't make sense. Can they use the All Writs Act to force Ford and GM to create new

  • Code as speech. I can see how that applies at times, but for the most part code is a tool. It is primarily functional.

    But even if we do accept that it is speech, the first amendment offers a lot less protection against being compelled to "speak" then being prevented from doing so. Courts will rule that a newspaper must print an apology, for example, and has means to compel witnesses to testify (The fifth amendment protects here)

    • Re: (Score:2)

      by gweihir ( 88907 )

      It cannot compel people to make stuff up, like a fairy-tale, a poem or a novel. And that is the aspect of speech we are talking about here.

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