Apple reportedly enlists aid of free-speech attorneys in encryption battle
Details surrounding Apple's legal battle to keep iPhone encryption intact continue to trickle out, the latest being a report claiming the company has retained the services of two prominent attorneys well versed in free-speech rights, suggesting such issues will be in play at upcoming court hearings.
According to filings recently lodged with a California court, Apple names Theodore Olson and Theodore Boutrous as representing lawyers in its bid to counter a court order compelling the company to help unlock an iPhone 5c device tied to last year's San Bernardino shootings. The pair's appearance could mean Apple plans to incorporate free-speech rights as a pillar in its case.
As reported by Reuters, Olson has seen success arguing First Amendment rights and in 2010 won the political free-speech case Citizens United v. Federal Election Commission. Boutrous, who often represents media organizations in court, is no stranger to Apple having been lead counsel in the company's protracted bid to curtail antitrust monitoring imposed as a result of the Department of Justice's e-book price fixing lawsuit.
Speaking with law professionals, the publication reports one of Apple's primary targets will be a U.S. Supreme Court decision from 1977 cited by government officials to compel the company's cooperation. The prior ruling referenced a reading of the All Writs Act of 1789 to authorize an order compelling a phone company to aid in a law enforcement surveillance operation.
As for the potential of a free-speech argument, Reuters spoke with cryptology expert Riana Pfefferkorn, a fellow at Stanford University's Center for Internet and Society, who said Apple could assert the FBI's request for a software workaround as tantamount to unlawful compelled speech. Since Apple contends such forensics tools do not currently exist, it would be forced to write computer code specifically for that purpose, Pfefferkorn said.
A federal magistrate judge earlier this week ordered Apple to comply with FBI requests to assist in the unlocking of a passcode-protected iPhone 5c used by San Bernardino shooter Syed Rizwan Farook. Under the terms of the agreement Apple would be made to create specialized software designed to bypass a passcode attempt counter in iOS 9.
Protecting computer code under the umbrella of free speech has been argued at the federal level before. Reuters points to a 1999 case heard by a three-judge panel of the 9th U.S. Circuit Court of Appeals, which found source code belonging to encryption software is indeed protected. That opinion was later rendered moot, however.
More information on Apple's legal tactics should be revealed when the company files its response to this week's court order. Apple was initially assigned a Feb. 23 filing deadline, but a report on Thursday claims that date has been pushed back to Feb. 26.