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Electronic Frontier Foundation Encryption Government Software The Courts United States Your Rights Online Apple

EFF On Why FBI Can't Force Apple To Sign Code (boingboing.net) 252

New submitter Kurast writes with this article at Boing Boing: Code is speech: critical court rulings from the early history of the Electronic Frontier Foundation held that code was a form of expressive speech, protected by the First Amendment. The EFF has just submitted an amicus brief in support of Apple in its fight against the FBI, representing 46 "technologists, researchers and cryptographers," laying out the case that the First Amendment means that Apple can't be forced to utter speech to the government's command, and they especially can't be forced to sign and endorse that speech. In a "deep dive" post, EFF's Andrew Crocker and Jamie Williams take you through the argument, step by step. (You can follow along by reading the brief itself (PDF), too.)
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EFF On Why FBI Can't Force Apple To Sign Code

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  • "deep dive" (Score:3, Informative)

    by Gravis Zero ( 934156 ) on Friday March 04, 2016 @02:47PM (#51638321)

    so that's what their calling 50 page walls of text these days, eh?

  • by Anonymous Coward

    It is true that the FBI cannot force Apple to produce new code that does not today exist.

    But, code is not speech.

    What the FBI cannot do is force a company to do something that will cause it irreparable harm and devalue its entire business model. Forcing Apple to produce this code goes against Apple's right to be free of unreasonable seizures, as the FBI would in effect be seizing 80% of the value of the company, if not more, to get a backdoor into all iPhones.

    First, the FBI does not have a right to a backdo

    • by cfalcon ( 779563 )

      > But, code is not speech.

      Yes, of course it is. It's been found that way in court, and what the fuck ELSE would it be? Wait, don't answer that: every other possibility is terrifying.

    • by Anonymous Coward on Friday March 04, 2016 @02:59PM (#51638461)

      But, code is not speech.

      Yes it is. This is a legal question that's been settled already by several cases. Here's a quote from one of them (Universal City Studios vs Corley)

      Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in “code,” i.e.,symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone chose to write a novel entirely in computer object code by using strings of 1’s and 0’s for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English.

    • What the FBI cannot do is force a company to do something that will cause it irreparable harm and devalue its entire business model. Forcing Apple to produce this code goes against Apple's right to be free of unreasonable seizures, as the FBI would in effect be seizing 80% of the value of the company, if not more, to get a backdoor into all iPhones.

      I disagree with this reasoning. A business doesn't have an inalienable right to make money. If I run a child pornography store, the government can, will, and s

      • If I run a child pornography store...

        Your argument doesnt have to go to such extremes.

        If you ran a Heterosexual Wedding Cake Bakery ... we know that the progressives are fully willing to force you to make cakes for homosexuals..

    • ... as the FBI would in effect be seizing 80% of the value of the company, if not more, to get a backdoor into all iPhones.

      Are you seriously claiming that more than 80% of the value of Apple is the ability of users to encrypt data on iPhones? Seriously?

      The EFF brief claims that Apple "signing" the code it could write to break into the one phone in question would apply to "hundreds of millions of people". Except hundreds of millions of people would never see or even have access to that code. As for it breaking the trust in Apple, some of us already know that Apple can quite easily break into secured systems on behalf of third

    • by jonwil ( 467024 )

      Actually, Bernstein v. United States put forward the argument that human readable source code IS protected speech under the first amendment. Several courts agreed with that argument although the government loosened the restrictions on encryption before it got all the way to the supreme court.

  • by ljhiller ( 40044 ) on Friday March 04, 2016 @03:00PM (#51638465)
    Look. I see EFF lawyers saying code is speech and is protected. And I see EFF lawyers saying code is math and is not eligible for patent protection and sometimes not even eligible for copyright protection. I want an EFF lawyer to explain their stand on how these three mechanisms apply to code before this story gets posted AGAIN and it had better be consistent.
    • Re: (Score:2, Offtopic)

      by NotInHere ( 3654617 )

      The US is at war with Terrorism. That's why it can invade afghanistan. America is not at war with Terrorism. That's why the geneva treaty doesn't apply for gitmo inmates.

      • Re: (Score:3, Informative)

        Actually that is a flawed argument. The Geneva treaty doesnt apply to anyone UNLESS they meet very specific requirements....which the git's all fail on. No uniform. Not a signatory of the Geneva treaties. The list goes on and on.

        Maybe next time try and not get your talking points from Huff Po or Mother Jones m'kay?
      • by DaHat ( 247651 )

        America is not at war with Terrorism. That's why the geneva treaty doesn't apply for gitmo inmates.

        No, Geneva doesn't apply to the detainees as unlawful combatants are expressly not protected, same generally goes for spies and saboteurs.

    • by sjbe ( 173966 ) on Friday March 04, 2016 @03:13PM (#51638587)

      And I see EFF lawyers saying code is math and is not eligible for patent protection and sometimes not even eligible for copyright protection.

      Some code cannot be copyrighted, though this is the exception rather than the rule. For example I can write a hello world program but I can't copyright it because it is too basic to be considered a creative work but I can write a word processor and I can copyright that. In principle no code should be eligible for patents because the code should be adequately protected by copyright. You shouldn't be able to patent math. Patents should only be for tangible goods. But there is a sufficient level of creativity in coding that allowing a copyright is reasonable. (presuming we think copyright itself is reasonable which is a separate discussion)

      I don't think the EFF is being inconsistent at all in their stance on these issues.

      • by mysidia ( 191772 )

        I can write a hello world program but I can't copyright it because it is too basic to be considered a creative work

        False.... you can write a hello world program and copyright it. You might have some trouble enforcing that copyright, particularly if someone else already wrote an identical one.

        With some minor tweaks/additions to your Hello world program, then it will be subject to the full protections of copyright.

        I don't think the EFF is being inconsistent at all in their stance on these issues.

    • by mpoulton ( 689851 ) on Friday March 04, 2016 @03:32PM (#51638729)

      Look. I see EFF lawyers saying code is speech and is protected. And I see EFF lawyers saying code is math and is not eligible for patent protection and sometimes not even eligible for copyright protection. I want an EFF lawyer to explain their stand on how these three mechanisms apply to code before this story gets posted AGAIN and it had better be consistent.

      It's not the EFF that's inconsistent, it's the law. Things that are patentable (functional devices or systems) are not copyrightable (creative works of expression), and vice versa. The two systems are inherently designed not to overlap. That's why the EFF and others are upset about the apparent overlap in practice with respect to software. The EFF's perspective is that treating software as a functional device is wrong. It's speech, math, creative expression, a literal set of instructions, but not a "thing" which "does" something itself. Therefore, it is inappropriate to handle software through the patent system. To put a finer point on it, patents cover implementations of ideas, not the ideas themselves. You can't patent the idea of a new invention - you can only patent an actual implementation of it. The EFF's position is that software is strictly an idea, a communication of instructions. The instructions themselves are not functional or even tangible and therefore should not be patentable. Just like any other written information, it should be copyrightable if and when it constitutes a creative work. That's the EFF's argument, and it's a good one. And it is entirely consistent with their position in this amicus brief.

    • Math is the Universal Language used to convey ideas.

    • by hey! ( 33014 )

      Well, speech isn't eligible for patent protection, so maybe math is speech, and code is math?

    • That's an interesting thought. I know less-informed Slashdot commenters, who have never read the relevant law, make those claims. I would be surprised if an EFF lawyer made those claims about code. They might say that about one specific algorithm, which can be expressed in English, code, or hardware.

      You mention two mistakes, wrong about both the law and the facts.

      The statute on patentability says:
      The laws of nature, including the laws physics and the laws of math, aren't patentable

      That makes sense

    • Because those are two different forms of protection. Protections of speech in the 1st Amendment means that the government cannot censor you for what you say and with some restrictions you can say what you want. Patent protection in IP law means that you can make it so that other people cannot repeat what you said without paying you money. It protects their ability to speak as well. For example, if you think Donald Trump is a mean SOB, you can say it. You cannot patent/trademark that to force your neighbor t
    • "Hello, how are you". or "2 + 2 = 4"

      Speech, yet I'm not allowed to copyright it. Why is that? How does that interplay with their arguments?

      • by sl149q ( 1537343 )

        You cannot patent the discovery that 2 + 2 = 4.

        You can certainly copyright your presentation of it if it is in anyway unique especially from previously written forms. Other people can present it differently or use previously non-copyright versions.

  • by nimbius ( 983462 ) on Friday March 04, 2016 @03:03PM (#51638503) Homepage
    ah you think the constitution is your ally. When your precious constitution declared warrantless search and seisure to be unlawful, we merely declared our our borders to be hundreds of miles long. We declared our wiretaps to be constitutional through "metadata."

    When the constitution declared the first amendment sacrosanct, we merely declared those who spoke against us as "enemy combatants" and had them executed by drone without so much as a second thought. We bombed the news stations that refused to fall in line with our message during our wars, and we openly slaughtered their journalists in the field. When it was reported, we sentenced the whistleblower to rot in prison.
  • by BrookHarty ( 9119 ) on Friday March 04, 2016 @03:09PM (#51638549) Homepage Journal

    The government can mandate you buy a product, why not a mandate to open a product. If you believe the government can force you to do an action, why not another? What makes this any different than any other government force?

    They already dictate your 4th amendment rights, so restricting your 1st for the "public good" is no stretch.

    Just trying to make you think about the scope, that once you start giving up your rights for something you want, the government can limit your other rights.

    Don't being a hypocrite when it comes to picking and choosing which rights you want to defend, defend them all.

    • The government can mandate you buy a product, why not a mandate to open a product. If you believe the government can force you to do an action, why not another? What makes this any different than any other government force?

      Agreed. Government can do whatever we agree government can do (and, unfortunately, sometimes a good deal that we don't agree government can do, but that's a topic for another discussion). We've agreed that government can make us buy a product (I presume you're talking about medical health insurance here), and we can similarly agree that government can make us open a product (I presume you're talking about the iPhone here). We haven't yet agreed on that point, though. I think that's the issue.

      Don't being a hypocrite when it comes to picking and choosing which rights you want to defend, defend them all.

      Disagreed. Supp

    • I completely agree with your overall premise, of course, but I wanted to nitpick about your opening statement.

      The government can mandate you buy a product, why not a mandate to open a product. If you believe the government can force you to do an action, why not another? What makes this any different than any other government force?

      Two reasons, both related:
      1) If the government is going to mandate us to do something, it's the legislative branch doing it. The judicial branch gets to interpret and apply the laws (and possibly toss them out as contradicting higher laws), the executive branch gets to enforce them, but neither gets to mandate things without a law backing them up. Or at least that's how it's supposed to work, of cou

    • by dissy ( 172727 )

      I'd like to add a butchered quote that is relevant:

      The price for having freedom and presumption of innocence is the fact that guilty men may roam free and evil men may do harm before they can be stopped.
      But if stopping them means risking the loss of freedom and the punishment of the innocent, then tolerating such men is the cost that we must accept for
      all the treasures a free society offers. A saboteur, terrorist, or criminal can only destroy objects and harm lives.
      But they are incapable of touching the foundation on which that freedom is founded. Only our fear and paranoia can do that.

  • by wcrowe ( 94389 ) on Friday March 04, 2016 @03:33PM (#51638731)

    I think the First Amendment argument is not as strong as the argument against the government forcing a company to build something that it does not normally build. Should the government be able to force Black and Decker to build firearms? Should they be able to force Dupont to manufacture napalm? Now, if these companies WANT to manufacture these goods, that's one thing, but forcing them to do it is quite another.

  • I'm not altogether I'd call source code "speech", but I'm pretty sure that object code isn't speech. If Apple wanted to use a binary editor to change the number of tries in the object code from 10 to 10,000, then sign the result, they haven't been forced to utter speech.

    Yeah, it's a stupidly legalistic approach, but what we're talking about is corner cases where every interpretation of the rules is stupidly legalistic.

    Let me be clear I think Apple shouldn't be forced to do this -- or at the very least they

    • It is an amicus curae brief meaning that they can use whatever arguments they would like. Also they are likely to use different arguments than Apple as to be not redundant.
    • If Apple can do it, then why can't the FBI do it themselves instead of attempting to compel someone else to do their work for them without compensation? Effectively the FBI is saying, "If you implement unbreakable encryption, we will compel you to break it and then punish you for not doing so, so don't you DARE implement unbreakable encryption!"
    • I'm not altogether I'd call source code "speech", but I'm pretty sure that object code isn't speech. If Apple wanted to use a binary editor to change the number of tries in the object code from 10 to 10,000, then sign the result, they haven't been forced to utter speech.

      There is no fundamental difference between source code and object code, aside from the level of abstraction. Both are lists of instructions and associated data. Both can be read and understood by both computers and (properly trained) humans.

      The signature, however, is the bigger issue. Forcing Apple to sign a compromised build of the software with their code-signing key is exactly equivalent to forcing them to publicly attest that the compromised build is approved by Apple for operation on the iPhone 5C. Tha

      • by sl149q ( 1537343 )

        Exactly. Being able to force Apple to sign code allows for weaponized updates. Custom versions of code that can be covertly placed into a targeted phone (either black box or via normal update). Think of phones that simply send the GPS tracking data continuously to the relevant authorities in real time. Or have the microphone recording audio and forwarding in real time.

    • Even if code isn't speech, wouldn't signing the code with Apple's certificate be considered speech? It's Apple certifying that this code passes their standards. By being forced to sign code, they are being forced to declare code as acceptable to Apple because the government told them to say it was acceptable.

      So maybe Apple is forced to write the code but can't be forced to sign it. Good luck running that code on the iPhone, FBI!

    • by sl149q ( 1537343 )

      First, there are tools to translate from source code to binary and binary to source code. Merely a mechanical translation. Object code is provably equivalent.

      Second, if they made change to the binary with a binary editor, the signature would no longer be valid and it would not work. It would need to be resigned which as explained is speech and also cannot be forced (hopefully.)

  • Only when it isn't functioning (when it is printed, on the disc, etc).
    When it works, it is more than speech. It can kill people, direct missiles, etc after all.
    If it was just speech, then an execution order is free speech too.

  • by Phiz ( 21461 ) on Friday March 04, 2016 @05:05PM (#51639445)

    It would seem to me that EFF's line of defense is dependent on the Citizens United vs Federal Election Commission, where it was ruled that corporations have the same constitutional rights to free speech as people. If Apple did not have such a right, then the government could force them to produce and sign code. I personally was unhappy with the Citizens United vs FEC ruling, but this is an area where it could have a positive impact on me.

  • If writing the software is possible, then the FBI can do it themselves. If it isn't possible, then how can the FBI punish Apple for not achieving the impossible? That's the concern nobody is talking about: can the government hold you in contempt for not doing something you are incapable of doing? I get that Apple is fighting the good fight and trying to set a precedent that the government can't force them to neuter their own user privacy protection scheme. But wouldn't it be easier to just argue that the go
    • As much as I'm on Apple's side on this, what might be technically possible for Apple to do might be near-impossible for the FBI to accomplish. Should Apple decide tomorrow to comply with this demand and assuming that this isn't 100% impossible to to, Apple has the technical know-how to figure out how to code it and have the ability to sign the code as being from Apple (and thus being allowed to run on iOS devices). The FBI, on the other hand, has no experience writing software for iOS devices and so would

    • If writing the software is possible, then the FBI can do it themselves.

      Right now, to get to the contents of a phone, the FBI must use the courts to get a warrant. This at least provides a little bit of a check on what they are doing. If they write their own code, this removes this last vestige of oversite and they will be free to get into any phone they please (just like the NSA that wrote their own software). Is that really what people want?

  • Let's say this argument succeeds. Then the FBI just asks for the signing certificate, and letting the FBI have the certificate is worse than what they were asking for before.

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