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Thursday, 25 February 2016 11:36

Apple to claim First Amendment rights in FBI case Featured

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Apple will make its first formal submission on Friday (Saturday AEDT) in response to the court order the FBI brought against it last week, asking that it create a modified version of its mobile operating system to facilitate accessing data on an iPhone.

The first hearing has been set down for March 22.

Apple chief executive Tim Cook has already indicated that the company's main argument will be that the government is over-reaching in its use of the 227-year-old All Writs Act to ask the company to create what is effectively a backdoor.

Cook has also hinted that the company is prepared to take this fight all the way to the Supreme Court. Apple has both the money and the legal talent to do so.

There are other angles as well. According to the Los Angeles Times, Apple will argue that its rights under the First Amendment of the US Constitution would be violated if it was forced to create this modified version of iOS.

The court order which the FBI obtained last week was based on the All Writs Act, that makes it compulsory for an individual or an organisation to assist officials in their investigations and is generally used only when there is no other way to obtain co-operation. Since the FBI acted, serious doubts have been cast over its various assertions.

In 1977, the US Supreme Court ruled that the Act could be used to compel the New York Telephone Company to provide technology that would enable officials to track down calls related to gambling.

But in that case, the technology needed already existed and the company was a heavily regulated body in the public sector, according to the Los Angeles Times.

It quoted Theodore J. Boutrous, one of Apple's lawyers, as saying: "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."

A 1999 case found that a student who intended to publish an algorithm for an encryption equation was protected by the First Amendment and the government could not ask him to submit his ideas for review before publication.

But Bloomberg pointed out that other cases have not received similar rulings, with judges finding that code did not merit the same protections as free speech.

Meanwhile, veteran technology journalist Robert X. Cringely has advanced a theory that this could the Obama administration's way of defeating the debate over encryption which has been going on since the first disclosures made by former NSA contractor Edward Snowden that mass surveillance of the American public was being carried out.

According to Cringely, the likelihood of the Supreme Court coming down on the side of those supporting the creation of backdoors had diminished since the death of conservative justice Antonin Scalia.

The remaining eight judges are split into nominally conservative and liberal camps, but Cringely pointed out that two of them had at times opted for moderate outcomes on certain decisions.

Cringely argued that the Obama administration may well have been reasoned that this was probably the best time to have such a case come up in the Supreme Court as the chances of the FBI losing were pretty good.

The stoush between the FBI and Apple hinges on an iPhone 5c belonging to the San Bernardino Department of Health. The phone had been in use by Syed Rizwan Farook, one of two people involved in an act of terrorism in December last year in which 14 people were killed. The FBI wants to look at data on the phone but it needs the access code to do so. It has asked Apple to write a version of iOS without the features that prevent unlimited passcode guessing and increasing time intervals between guesses so it can use brute force methods to guess the passcode. Apple has refused.

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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