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.
As we explain in our amicus brief, digital signatures are a powerful way of communicating the signer's endorsement of the signed document—in this case, the custom iOS code. Due to the mathematical properties of digital signatures—invented in part by signers of our brief, including Martin Hellman and Ron Rivest—it would be very difficult to impersonate Apple without possessing the company's secret signing key. Apple has chosen to build its iOS in such a way that its devices only accept iOS code signed by Apple, a design it believes best ensures user trust and strengthens the security of these devices. Since over 3 million phones were stolen in 2013 alone, the protections Apple is providing are important. By requiring Apple to sign code that undermines the security features Apple has included in iOS, the court's order directly compels the company's strong and verifiably authentic endorsement of the weakened code.
This is where the First Amendment comes in. The Constitution clearly prevents the government from forcing people to endorse positions they do not agree with. Whether that endorsement takes the form of raising your hand, signing a loyalty oath, putting a license plate motto on your car or, as here, implementing an algorithm that creates a digital signature, the problem is the same. As the Supreme Court noted in a case involving whether the government could force private parade organizers to include viewpoints they disagreed with, "[W]hen dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised." As a result, government mandates requiring people to speak are subject to strict scrutiny—the most stringent standard of judicial review in the United States.
Deep Dive: Why Forcing Apple to Write and Sign Code Violates the First Amendment
[Andrew Crocker and Jamie Williams/EFF]