In its legal fight against the FBI over iPhone security, Apple has made just about every argument it can credibly make. Two of them are particularly important. It has made a very good argument that the FBI cannot use an ancient federal statute called the All Writs Act to force it to create custom firmware to unlock the San Bernardino shooter’s iPhone. (In a separate case, a federal judge in New York agreed with Apple on Monday that the act could not be used to compel the company to unlock a drug trafficker's iPhone.) Apple has also argued that “the First Amendment prohibits the government from compelling Apple to make code.” The idea here is that computer code is a kind of speech, and that coercing Apple to create code would be forcing the company to produce speech, in violation of the First Amendment.
Apple's First Amendment argument is fascinating and seductive, particularly for those who sympathize with Apple’s stand against the feds. Apple has told the court that “under well-settled law, computer code is treated as speech within the meaning of the First Amendment.” Unfortunately, it’s wrong about that. The Supreme Court has never accepted that code is protected like speech. Importantly, the idea that Code = Speech is dangerous and must be rejected.
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