IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRCIT OF CALIFORNIA

EASTERN DIVISION

IN THE MATTER OF THE SEARCH OF AN Case No. 5:16-cm-00010-SP

APPLE IPHONE SEIZED DURING THE
EXECUTION OF A SEARCH WARRANT AMICUS CURIAE BRIEF OF LAW
ON A BLACK LEXUS IS300, CALIFORNIA STUDENT IN SUPPORT OF APPLE, INC.
LICENSE PLATE 35KGD203.
Date: April 6, 2016
Time: 1:00PM
Ctrm: 3 or 4 3rd Floor
Judge: Honorable Sheri Pym

TABLE OF CONTENTS
Page
I. TECHNICAL BACKGROUND ............................................................................................ 1
A. Process of Writing Coding ............................................................................................ 1
B. Full-disk Encryption on the iPhone ............................................................................. 1
C. The Three Apple iOS 8 Security Features In Question ............................................. 1
D. Digital Signatures .......................................................................................................... 2
II. FACTUAL BACKGROUND ................................................................................................. 2
A. The Message Apple Deployed Through its Security Features ................................... 2
B. The Message Apple Deployed Through its Digital Signature.................................... 3
C. The Order Requires Apple to Create a New Operating System ............................... 3
III. SUMMARY OF ARGUMENT .............................................................................................. 3
IV. ARGUMENT ........................................................................................................................... 4
A. Apples Code is Speech that is Protected under the First Amendment .................... 4
1. Speech that Realizes First Amendment Values, including Speech in Computer
Code, is Protected under the First Amendment ..................................................... 4
2. Apples Security Features are Speech that is Protected Under the First
Amendment ............................................................................................................ 5
3. Apples Digital Signature is Speech that is Protected Under the First
Amendment ............................................................................................................ 7
4. Apples Code and Signature are Not Commercial Speech ................................ 8
B. B. The Order Violates Apples First Amendment Right to Free Speech By
Compelling Apple to Code Against Apples Stated Message .................................... 8
1. The First Amendment Prohibits the Government from Compelling Speech
without a Narrowly Tailored Policy that has a Compelling State Interest ........... 8
2. The Order Compels Apple to Code and Approve of A New Operating System
that is Against Apples Stated Message ................................................................. 9
3. The Government Failed to Provide a Compelling State Interest and the Order
is not Narrowly Tailored ..................................................................................... 10
4. The Order Prevents Apples Ability to Participate in an Important Public
Debate .................................................................................................................. 10
5. Per the Canon of Constitutional Avoidance, The All Writs Act Should Not be
Interpreted to Support the Order ......................................................................... 11
V. CONCLUSION ..................................................................................................................... 12

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TABLE OF AUTHORITIES
[Omitted]
I.

TECHNICAL BACKGROUND

A. Process of Writing Coding

Writing code is a process by which a person known as a computer programmer
writes a sequence of characters into an operating system (in this case an operating system on a
mobile phone) for the purpose of commanding that operating system to perform a specific
function. Different programmers approach writing code in different ways. Some people write a
complete design before starting to write code, others draw a sketch of what they want to make,
and others may list the features they want to include before starting to write. Writing code is
often an iterative and collaborative task, whereby programmers often use snippets of their code
to convey their ideas to other programmers.
Writing code requires a choice of language (e.g. C, C++, Objective-C, Javascript, Python,
Perl, PHP, etc.), a choice of syntax and vocabulary (e.g. variable names, function names, class
definitions, etc.), and textual descriptions to help explain what the code is doing (commonly
known as comments to code).
B. Full-disk Encryption on the iPhone
iPhones running Apples then-newest operating system ("iOS 8") have full-disk
encryption, which is a combination of hardware and software encryption that automatically
converts data on a hard-drive into a form that cannot be understood by anyone who does not
have the authentication key to undo the conversion. On an iPhone, the authentication key is a
passcode the user creates and inputs on an iPhone to undo the conversion and effectively
unlock the iPhone. Apple does not have the user passcode for the iPhone in question. Thus, it is
impossible for Apple to decrypt that iPhone.
Along with full-disk encryption, Apple added complimentary security features to iOS 8
so no one other than a person with the user passcode could unlock the phone and undo the
conversion.
C. The Three Apple iOS 8 Security Features In Question
The three security features Apple specifically added to iOS 8 to make its full-disk
encryption more secure are:
1. A limit to 10 wrong passcode guesses, after which the iPhone locks down, scrambles the
users data, and does not allow further guesses.

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2. An increasing delay between password guesses, meant to slow down attackers who guess
the wrong password multiple times.
3. Requiring the user enter a passcode guess manually on the iPhone, instead of allowing a
user to hook the iPhone up to a computer that can quickly run through thousands of
passcode combinations.
There is one optional feature that the user can enable that erases all the user data on the
iPhone after 10 wrong passcode guesses. The FBI is not sure if the user enabled that feature on
the iPhone in question.
These three security features combined with the full-disk encryption prevent the FBI
from using a brute-force passcode guessing technique, wherein they repeatedly enter different
passcodes on an iPhone until they guess the right one, because, for instance, they only have ten
guesses before the iPhone locks them out permanently.
D. Digital Signatures
A digital signature is a mechanism that can be employed by anyone who writes codes to
do two things: to confirm the author of those lines of code and to guarantee that those lines of
code were not altered since it was signed. The process of creating digital signatures is called
code signing, although code signing can have many more steps as well.1 There are many
different algorithms that can be used to create different digital signatures, and computer
programmers have the option to not use a digital signature (i.e. release unsigned code that
doesnt tell the user where the code came from).
Apples digital signature is used in addition to a seal that detects alterations to the signedcode and a unique identifier, which identifies the code or determines which groups the code
belongs to.2
II.

FACTUAL BACKGROUND

A. The Message Apple Deployed Through its Security Features

In 2014, Apple specifically altered its operating system software on iPhones from iOS 7
to iOS 8. Apple introduced its new security features on iOS 8 to communicate its commitment to
security and user privacy to the world. The three security features at issue here are ones Apple
implemented to ensure its full-disk encryption could not be bypassed. Apple does not have and
has never created an operating system that bypasses the security features that make the full-disk
encryption secure.
1

See Code Signing Guide, Apple, Inc. available at

https://developer.apple.com/library/ios/documentation/Security/Conceptual/CodeSigningGuide/AboutCS/AboutCS.html#//apple_
ref/doc/uid/TP40005929-CH3-SW3 (explaining digital signatures and signed code).
2
Id.
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B. The Message Apple Deployed Through its Digital Signature

Apples digital signature is the way Apple communicates to its users that Apple endorses
and approves the information that users are getting on their Apple device. Apples digital
signature is a series of information (e.g. a string of numbers) that conveys to users that the
signature is a valid Apple signature, and that Apple approved the code attached to the signature.3
iPhones accept new code to update the iPhone operating system only if that code is
digitally signed by Apple. Otherwise that new code is rejected. Additionally, all applications sold
through the Apple Application Store are pre-approved by Apple with this digital signature. That
digital signature tells a user that it is safe to put the application on her phone.
C. The Order Requires Apple to Create a New Operating System
The order issued by the court on February 16, 2016, No. ED 15-0451M, titled Order
Compelling Apple, Inc. to Assist Agents in Search (the Order) compels Apple to create and
cryptographically sign a crippled version of its current operating system that disables three of its
security features that are meant to prevent entities from bypassing Apples full-disk encryption.
There is no other way for Apple to comply with the Order.4 The operating system the Order
mandates Apple to create (Govt-OS) does not exist and Apple never wants it to exist.5
III.

SUMMARY OF ARGUMENT

The Order violates the First Amendment by compelling Apple to speak against its stated
beliefs and by stifling Apples ability to participate in public debate without a compelling state
interest and a narrowly tailored Order that justifies such compulsion. The Order does this by
requiring Apple to take affirmative steps to create, for the FBIs use, new computer code that
compromises the encryption that Apple designed as part of its iPhone operating system.

3
Code Signing Overview: Code Signing Guide, Apple Developer Library, available at
https://developer.apple.com/library/mac/documentation/Security/Conceptual/CodeSigningGuide/AboutCS/AboutCS.html#//apple
_ref/doc/uid/TP40005929-CH3-SW3.
4
Legal Process Guidelines: U.S. Law Enforcement, Apple Inc., (September 29, 2015) available at
https://www.apple.com/privacy/docs/legal-process-guidelines-us.pdf. Apples Legal Process Guidelines state that Apple will not
perform iOS data extractions [from locked iOS devices] as data extraction tools are no longer effective. The files to be extracted
are protected by an encryption key that is tied to the users passcode, which Apple does not possess. Id., at 9.
5
Apple Incs Mot. to Vacate Order Compelling Apple Inc. to Assist Agents in Search and Opposition to Governments Mot. to
Compel Assistance, 13, 2-4 (The compromised operating system that the government demands would require significant
resources and effort to develop. Although it is difficult to estimate, because it has never been done before) (emphasis added).

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IV.

ARGUMENT

A. Apples Code is Speech that is Protected under the First Amendment

1. Speech that Realizes First Amendment Values, including Speech in Computer Code,
is Protected under the First Amendment
The First Amendment provides that Congress shall make no lawabridging the
freedom of speech First Amendment protection extends to speech that realize First
Amendment values, including acts that convey free expression and dry information devoid of
advocacy, political relevance, or artistic expression. See Miller v. California, 413 U.S. 15, 34,
(1973) (The First Amendment protects works, which, taken as a whole, have serious literary,
artistic, political or scientific value (emphasis added)). All ideas having even the slightest
social importance including those concerning the advancement of truth, science, morality, and
arts have the full protection of the First Amendment. Roth v. United States, 354 U.S. 476, 484.
Indeed, the First Amendment protects both purely expressive activities and symbolic actions.
Texas v. Johnson, 491 U.S. 397, 404 (1989) (stating First Amendment protection does not end at
the spoken word).
The First Amendment protects purely expressive activities as speech that realizes First
Amendment values. See e.g. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir.
2010) (affording tattoos full First Amendment protection because they constitute an expressive
activity), Ward v. Rock Against Racism, 492 U.S. 781, 790 (1989) (protecting music without
words as an expressive activity). As such, computer code has been held to be speech that realizes
First Amendment values for the inherently creative and expressive process used to create it.
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 448 (2d Cir. 2001) (Corley) (qualifying
computer code as speech and protecting the expressive elements of that code). Moreover,
computer code has gained protection for its expressive elements under Copyright law, see e.g.
Oracle v. Google, 750 F.3d 1339, 1354 (Fed Cir. 2014) (it is well established that copyright
protection can extend toa computer program), Computer Associates International, Inc. v.
Altai, Inc., 982 F.2d 693, 710-11 (2d Cir. 1992) (protecting computer code under Copyright law
for its expressive elements), Williams Electronics v. Artic Intl, 685 F.2d 870, 876-77 (3d Cir.
1982) and under the Freedom of Information Act.
The First Amendment has also long-protected conduct that contains a symbolic or
expressive message as speech that realizes First Amendment values. Texas v. Johnson, 491 U.S.
397, 397 (1989) (protecting the burning of the American flag because it constituted expressive
conduct), Buckley v. Valeo, 424 U.S. 1, 3(1976) (prohibiting ceilings on campaign expenditures
because of the restriction it would place on protected political expression), Cohen v California,
430 U.S. 15, 26 (1971) (standing for the proposition that a jacket with the words Fuck the
Draft may be worn in a courthouse because that conduct conveys an expressed message).
Computer code has long been held to be speech that realizes First Amendment values because of
the expressive messages carried through it. Bernstein v Dept of State, 922 F. Supp. 1426, 1436
(N.D. Cal 1996) (protecting the dissemination, teaching, and writing of encryption), Junger v.
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Daley, 209 F.3d 481, 485 (6th Cir. 2000) (protecting computer source code, because it is an
expressive means for exchange of information and ideas about computer programming).
Finally, First Amendment protections extend to corporations and individuals alike.
Citizens United v. FEC, 558 U.S. 310 (2009) ([s]peech does not lose First Amendment
protection simply because its source is a corporation).
2. Apples Security Features are Speech that is Protected Under the First Amendment
The computer code at issue hereApples security featuresrealizes First Amendment
values because Apples longstanding course of conduct, expressed through its code and public
comments, has sent a clear and consistent set of Apples beliefs about the importance of
computer security and risks of government surveillance to society. Before 2014, Apple deployed
its messaging application on the iPhone with end-to-end encryption to communicate its
commitment to user security.6 Then, in September 2014, Apple made its commitment to
computer security even clearer by deploying the three security features at issue in its then-newest
operating system along with many other privacy-minded features.7 Apples website titled
Apples commitment to your privacy even begins with At Apple, your trust means everything
to us and explains the various privacy and security features it implemented.8 More recently, in
Apples newest operating system (iOS 9) Apple implemented even more privacy-minded
features, such as processing user data on the iPhone itself rather than in the cloud, to keep the
data more private.9 Staying true to its commitment to user privacy, in February 2016, Apples
Chief Executive Officer publicly stated that Apple uses its full-disk encryption because Apple
believes its the only way to keep [customer] information safe and the contents of your
iPhone are none of our business.10
Apples computer code not only sends a message to society about Apples commitment
to security, its also a form of communication between programmers that entitles it to First
Amendment protection. Like in Corley, where the computer code that was held to be a form of
communication albeit written in a language not understood by the general public, here, the
computer code that forms the security features is a way for Apple engineers to communicate

Heres the Full Transcript of TIMEs Interview with Apple CEO Tim Cook, Nancy Gibbs, Lev Grossman, TIME Magazine,
March 17, 2016 available at http://time.com/4261796/tim-cook-transcript/ (Facetime, end-to-end encrypted from the start.)
7
When Apple deployed its security features, it explained the security changes in its iOS Security Guide. Apple iOS Security
Guide, September 2014, available at https://www.documentcloud.org/documents/1302613-ios-security-guide-sept-2014.html. In
addition to the three security features at issue here, Apple notes many other privacy-minded changes in its iOS Security Guide,
including Always-on VPN that eliminates the need for users to turn on VPN to enable protection when connecting to to Wi-Fi
[wireless] networks, randomized media access control address so that a devices address cant be used [by a network] to
persistently track a device by passive observers of Wi-FI traffic, and secure additions to Apple Mail. See id.
8
Apples commitment to your privacy available at https://www.apple.com/privacy/.
9
See Whats new in iOS https://www.apple.com/ios/whats-new/ (including the header Improved Security as one of the new
features of the operating system because keeping your devices and Apple ID secure is essential to protecting your your personal
informationlike photos, documents, messages, email, and so much more.). See also Apples commitment to your privacy
available at https://www.apple.com/privacy/ (stating some of the new security features in iOS 9, such as two-step verification).
10
See Tim Cook, A Message to Our Customers. Apple.com (Feb. 16, 2016) available at: http:www.apple.com/customer-letter/.
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Apples messages with other programmers and developers.11 Additionally, the Corley courts
proposition that instructions that communicate information comprehensible to a human qualify
as speech whether the instructions are designed for execution by a computer or a human (or
both) applies here because Apples instructionsin the form of computer codecommunicate
specific expressive messages about security and privacy to the computer programmers and
developers who read it.12
In addition to publicly expressing a clear and consistent set of beliefs about the
importance of privacy through its computer code, Apples computer code realizes First
Amendment values because the process used to create it is inherently creative and expressive.
Apple engineers state that writing code is an exceedingly creative and expressive process.13 If
Apple were writing a poem or creating music, it would be easy to see the creativity in it.
Communicating through computer code is no different, because writing software [code] is an
iterative, revision intensive, and mentally challenging task, just like writing essays, white papers,
memos, and even poems.14 Further, the inherent creativity and expressiveness in music and
natural languages is no different than that required to write computer code. For instance, the
Plaintiff in Bernstein, a cryptography professor, decided whether to express coding instructions
to students in English, mathematical formulas or in source code depending on many factors,
including the precision that the algorithm [coding instructions] needs to be expressed, and the
use which will be made of it.15 The Bernstein professors process to decide how to express
coding instructions was no different than the process a music professor or foreign-language
professor might take when determining how to express music or a foreign language to students,
which too depends on many factors, including how precise the music or foreign-language needs
to be expressed. Computer codes inherently creative and expressive processes entitle it to First
Amendment protection.
In addition to using an expressive process to create code, Apples refusal to code a new
operating system that creates a backdoor reinforces the fact that Apple code realizes First
Amendment values. Apple refuses to comply with the Order because Apple views its code as a
channel to communicate its belief about the importance of computer security and risks of
government surveillance. Apple described the Government request as an attack on iPhone
encryption and stated it would be wrong to intentionally weaken our products with a
government-ordered backdoor.16 Further, Apples Chief Executive Officer recently stated in an
interview that it felt like the order trampled on civil liberties, not only for our customers but in
11

See Corley, 273 F.3d at 453 (2001).

See id. at 448.
13
See Apple Incs Mot. to Vacate Order Compelling Apple Inc. to Assist Agents in Search and Opposition to Governments Mot.
to Compel Assistance, Declaration of Nicola T. Hanna, In my experience, different people approach writing code in different
ways...writing code is an exceedingly creative and expressive process
14
See id.
15
Bernstein v. US, Declaration of Daniel J. Bernstein In Support of Plaintiffs Mot. For Prelim. Injunction, 6 (1996) available
at https://www.eff.org/files/filenode/bernstein/961004_bernstein.declaration.html.
16
Answers to your questions about Apple and security, Feb. 23, 2016 (emphasis added) available at
https://www.apple.com/customer-letter/answers/.
12

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the broader sense.17 When asked what he meant by civil liberties he explained It means a lot
of things...the freedoms that are in the First Amendment. But also the fundamental right to
privacy. Apples co-founder, Steve Wozniak, also publicly commented on the Order stating to
have Apple make a weak operating system is just wrong.18
3. Apples Digital Signature is Speech that is Protected Under the First Amendment
Apples digital signature realizes First Amendment values because it symbolizes Apples
endorsement and approval of the code being sent to users. Just as burning a flag communicated
feelings about the US Government in Texas v. Johnson, 491 U.S. at 397, or campaign financing
helped express political endorsements in Buckley, 424 U.S. at 3, here, Apple uses its digital
signature to communicate its endorsement of specific code used to update iPhones. Apple
publicly stated that it digitally signs these updates to its operating system to ensure the
authenticity of its software updates.19 Apple also publicly told its developers any signed
version of your code that gets into the hands of users will appear to have been endorsed by your
company for use.20 Further, Apple believes two of the three distinct purposes of digitally
signing code is to identify that code is coming from a specific source and to determine if the
code is trustworthy.21 Apples symbolic use of its digital signature to convey its endorsement and
approval of code send to users entitles it to First Amendment protection.
In addition to the digital signature being used to communicate Apples endorsement of
signed-code, the process used to create Apples digital signature is inherently expressive and
creative, entitling it to First Amendment protection. Apples digital signature is expressive,
because Apple had to make many expressive and creative decisions related in forming its digital
signature. A few of those decisions include deciding to only allow Apple-signed software to be
verified and run on iPhones, choosing from a variety of ways to endorse code, choosing an
algorithm to generate the digital signature, deciding how to evaluate a digital signature, deciding
how to apply internal requirements to digital signatures, and deciding whether to reject selfsigned identities.22

17

Heres the Full Transcript of TIMEs Interview with Apple CEO Tim Cook, Nancy Gibbs, Lev Grossman, TIME Magazine,
March 17, 2016 available at http://time.com/4261796/tim-cook-transcript/.
18
Dawn Chmielewski, Steve Wozniak Calls FBIs Demands of Apple Just Wrong Re/Code (Mar. 8, 2016) available at
https://recode.net/2016/03/08/steve-wozniak-calls-fbis-demands-of-apple-just-wrong/.
19
How to verify the authenticity of manually downloaded Apple software updates, Apple Support, available at
https://support.apple.com/en-us/HT202369.
20
Apple Code Signing Guide: Code Signing Tasks, Apple Developer Site (emphasis added), available at
https://developer.apple.com/library/mac/documentation/Security/Conceptual/CodeSigningGuide/Procedures/Procedures.html#//a
pple_ref/doc/uid/TP40005929-CH4-SW2.
21
Apple Code Signing Guide: Code Signing Overview, Apple Developer Site, available at
https://developer.apple.com/library/mac/documentation/Security/Conceptual/CodeSigningGuide/AboutCS/AboutCS.html#//apple
_ref/doc/uid/TP40005929-CH3-SW3 (Code signing has three distinct purposes. It can be used to: ensure that a piece of code has
not been altered; identify code as coming from a specific source (a developer or signer); determine whether code is trustworthy
for a specific purpose (for example, to access a keychain item).
22
See Code Signing Guide, Apple, Inc. available at
https://developer.apple.com/library/ios/documentation/Security/Conceptual/CodeSigningGuide/RequirementLang/RequirementL
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4. Apples Code and Signature are Not Commercial Speech

The Supreme Court defines commercial speech as speech that does no more than
propose a commercial transaction. Harris v Quinn, 134 U.S. 2618, 2639 (2014), and
expression related solely to the economic interests of the speaker and its audience. Central
Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980)
(Central Hudson). The First Amendments concern for commercial speech is based on the
informational function of advertising. Central Hudson, 447 U.S. at 563 (emphasis added).
Here, Apples code and signature are not commercial speech, but long-held beliefs that
add to an important public debate. Unlike an advertisement, id. at 566, or a marketing message,
Sorrell v IMS Health, 131 U.S. 2653, (2011), that have been found to be commercial speech,
here, the speech in question is Apples consistent stance on user security and privacy that leading
academics and cryptographers have expressed,23 Congress continues to grapple with,24 and the
public hotly debates. The speech at issue here, whether delivered by a commercial entity or an
academic, runs deeper than commercial speech, and is precisely the type of speech the First
Amendment aims to protect to the highest degree possible.
B. The Order Violates Apples First Amendment Right to Free Speech By Compelling
Apple to Code Against Apples Stated Message
1. The First Amendment Prohibits the Government from Compelling Speech without a
Narrowly Tailored Policy that has a Compelling State Interest
The compelled speech doctrine prohibits the Orders requirement that Apple create and
sign code per the Governments specifications.
The Government may not compel speech, or require affirmation of a belief and an
attitude of mind. West Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943) (Barnette).
The principle is that compelling speech that a speaker would not otherwise make necessarily
alters the content of that speech. Riley v. Natl Fed. of the Blind of N.C., Inc., 487 U.S. 781,796
(1988). While [t]here is certainly some difference between compelled speech and compelled
silence,in the context of protected speech, the difference is without constitutional
significance. Id. Compelled speech is a content-based restriction subject to exacting scrutiny, id.
at 795, 79798, and thus may only be upheld if it is narrowly tailored to obtain a compelling
state interest. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (emphasis added).

ang.html#//apple_ref/doc/uid/TP40005929-CH5-SW1 (When you use the codesign command to sign a block of code, you can
specify internal requirements; that is, the criteria that you recommend should be used to evaluate the code signature.).
23
An Open Letter from US Reserachers in Cryptography and Information Security, (Jan 24, 2014) available at
http://masssurveillance.info/ (expressing a stance on cryptography and U.S. survelliance).
24
See e.g. Kristin Finklea Encryption and Evolving Technology: Implications for U.S. Law Enforcement Investigations,
Congressional Research Service at 10 (Feb. 18, 2016) available at https://www.fas.org/sgp/crs/misc/R44187.pdf (Policy makers
may debate which [backdoor or lack there of] is more advantageous for the nation on the whole); House Judiciary
Committee Hearing: Encryption Security/Privacy Balance, Federal News Service (Mar. 1, 2016) available at
http://www.fednews.com/transcript.php?item=565765, also see
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2. The Order Compels Apple to Code and Approve of A New Operating System that is
Against Apples Stated Message
The Order compels speech by requiring Apple to code a new operating system against
Apples stated message. Forcing Apple to delete the security features that Apple deliberately
added to communicate its stance on security and privacy would force Apple to speak
inconsistently and in opposition to its earlier messages. Here, Govt-OS is a symbol for the
system, idea, institution, or personality the Government holds, just as the as a flag in Barnette25
and the ideological motto in Wooley26 were symbols for the ideas the Government held.
Accordingly, just as a public school compelling students pledge allegiance to a flag against their
will,27 and the Government demanding a morally objectionable quote be displayed on ones
license plate28 were held to be compelled speech in violation of the First Amendment, here, the
Order unconstitutionally requires Apple to carry a message held by the Government and directly
opposed to by Apple.29 To comply with the Order, Apple must become the mobile billboard
for the Governments message just as New Hampshire drivers were in Wooley, 430 U.S. at 713.
Additionally, the Order compels speech by requiring Apple to signor approve and
endorseGovt-OS against its will. By compelling Apple to sign this code, the Order is forcing
Apple to carry the Governments message as its own, because Apples digital signature
communicates Apples approval and endorsement of the code. Requiring Apple to sign code it
disagrees with is equivalent to requiring Apple to self-identify with Government opinions it
disagrees with. Further, by requiring Apple to sign this code, the Order cheapens Apples future
messages to users, because if Apple complies, Apple users will be unable to identify if any future
code with an Apple digital signature coveys Apples beliefs, the Government beliefs, or another
third-party that compelled Apple to sign the code. This ultimately hurts Apples ability to
express its truly held beliefs to users in a trustworthy way, especially because Apple knows user
trust doesnt come easy.30 Apples longstanding message to build user trust, support security
and privacy, and oppose Government surveillance will be compromised if Apple is forced to
create and sign the Government's code as its own.
It makes no difference if the new code or digital signature Apple is compelled to
communicate is only internally or to the Government. Similar to Speiser, where a Government
imposed oath that was only required to be given to the Government (and not publicly) was
deemed unconstitutional because the oath compelled speech, here, even if Apple must only
create and communicate its code and its signature to the Government and not to the public, it still
compels Apple to speak against its will. See Speiser v Randall, 357 U.S. 513 at 515 (1958).
25

Barnette, 319 U.S. at 632.

Wooley v. Maynard, 430 U.S. 705 at 715 (1977) (Here, as in Barnette, we are faced with a state measure which forces an
individualto be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.)
27
Barnette 319 U.S. at 642.
28
Wooley v. Maynard, 430 U.S. at
29
Apple Privacy Policy, available at https://www.apple.com/privacy/government-information-requests/ (stating Apple has never
worked with any government agency to create a backdoor to any of its products or services, nor will it).
30
Apples Commitment to Your Privacy, Tim Cook, Apple Privacy Site, available at https://www.apple.com/privacy/.
26

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3. The Government Failed to Provide a Compelling State Interest and the Order is not
Narrowly Tailored
The Government cannot meet its burden to provide a compelling state interest to require
Apple to code against its stated message. While the Government has a legitimate and worthy
interest in investigating and prosecuting terrorists31 that in it of itself is a compelling state
interest, that is not the question here. The question is whether the Government has a compelling
state interest in viewing the information on the iPhone, which it does not because the
Government has merely speculated that the iPhone in question might contain potentially relevant
information. 26 Hanna Decl. Ex. H [Comey, Follow This Lead] (Maybe the phone holds the
clue to finding more terrorists. Maybe it doesnt.), see also Heres the Full Transcript of TIME
Interview with Apple CEO Tim Cook, TIME Magazine (Mar. 17, 2016) (Is there something on
the phone? I dont know. I dont think anybody really knows.). It is well known that terrorists
and other criminals use highly sophisticated encryption techniques beyond Apples full-disk
encryption, making it likely that any information on the iPhone lies behind several other layers of
non-Apple encryption. See Hanna Decl. Ex. E [Coker, Tech Savvy] (noting that the Islamic State
has issued to its members a ranking of the 33 most secure communications applications, and has
urged its followers to make use of [one apps] capability to host encrypted group chats). Thus,
the Governments interest in viewing the iPhone in question is not compelling.
Not only has the Government failed to show a compelling state interest, the Order is not
narrowly tailored as required by the compelled speech doctrine. Even if Apple locks Govt-OS to
only work on the specific recovered iPhone and performs all recovery confidentially on their
own, without sharing the method with the FBI, further down the road other countries will
demand the same access by Apple. Those foreign demands may not be held to the same level of
scrutiny, be from agencies that are as trusted as US agencies, and may lead to other
unconstitutional harms. In other words, creating Govt-OS is equivalent to creating a golden key
or universal-backdoor into every iPhone. Once Apple is forced to create this technology we can
never go back to world where it did not exist. Further, breaches and leaks have happened and
will happen again. Entrusting a government agency with an operating system that is a
backdoor to Apples current secure operating system will lead to more breaches. For the
reasons above, the Governments order is not narrowly tailored to the Governments stated
interest of unlocking only this particular iPhone.
4. The Order Prevents Apples Ability to Participate in an Important Public Debate
The Order burdens Apples public dissent and true opinion about the ongoing national
debate about digital security and user privacy. The Order requires Apple to tradeoff user security
for Government intelligence, an important tradeoff that is hotly debated by the public today.
31

Apple Incs Mot. to Vacate Order Compelling Apple Inc. to Assist Agents in Search and Opposition to Governments Mot. to
Compel Assistance, 33 4-5.
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Government officials have weighed in on both sides of the debate,32 New York legislators have
proposed a bill on the issue,33 and lawyers and cryptographers are debating it on public panels.34
The legislative branch is better equipped to decide matters of ongoing political debate
than our court system.
5. Per the Canon of Constitutional Avoidance, The All Writs Act Should Not be
Interpreted to Support the Order
The canon of constitutional avoidance suggests courts should avoid the decision of
constitutional questions when there are two or more competing plausible interpretations of a
statute by presuming that Congress did not intend the alternative which raises serious
constitutional doubts. Clark v. Martinez, 543 U.S. 371, 382 (2005). Thus, where an otherwise
acceptable construction of a statute would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such construction is plainly contrary to the
intent of Congress. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988).
Here, the canon of constitutional avoidance suggests the court should reject the
Governments interpretation of the All Writs Act. Here, the Government's interpretation of the
All Writs Act is similar to the its interpretation when it requested an order against Apple in the
Eastern District of New York, where Judge Orenstein held the established rules for interpreting
a statute's text constrain me to reject the Government's interpretation that the AWA [the All
Writs Act] empowers a court to grant any relief not outright prohibited by law. In re Order
Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, Case
No. 1:15-mc-01902-JO (Filed 2/29/16) at 1. The Judge went on to hold the order invalid.
The canon of constitutional avoidance suggests the court should interpret the All Writs
Act to be overridden by the First Amendment, the Communications Assistance for Law
Enforcement Act (CALEA), and proposed changes to CALEA. We presume Congress did not
intend the All Writs Act to support the Order because that construction raises serious First
Amendment issues, and there is another plausible interpretationthat the Act does not mandate
the Order. See Clark v Martinez, 543 U.S. at 382. The All Writs Act can be plausibly interpreted
to not mandate this Order because the All Writs Act did not consider the issue of data encryption
and speech in code when it was passed in 1789, and more recent Congressional statutes (e.g.
CALEA) have addressed those issues. In 1994 Congress addressed the complex subject of data
32
See e.g. Doug Bernard, Government Both Supports Encyption and Seeks Limitations, Voice of America (Apr 14, 2016)
available at http://www.voanews.com/content/us-government-supports-encryption-seeks-limitations/3286822.html (the irony
of one arm of the U.S. government working to expand the use of encypttion while another seeks to slow its spread..).
33
State of New York, 8093, Jun. 8, 2015, available at http://legislation.nysenate.gov/pdf/bills/2015/A8093, see also Alan
Buckingham, New York is trying to force backdoors into phones with legislation, BetaNews, available at
http://betanews.com/2016/01/16/new-york-is-trying-to-force-backdoors-into-phones-with-legislation/.
34
See e.g. Jazmine Ulloa, National Debate over Encyption Seeps into SXXW Interactive, Mar. 15, 2016 available at
http://www.mystatesman.com/news/news/national-govt-politics/national-debate-over-encryption-seeps-into-sxsw-in/nqmFP/ (a
former lawyer for the National Security Agency was bickering with one of the worlds leading cryptographers in a panel
discussionat the South by Southwest Interactive Festival),

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encryption in CALEA, where it chose only to regulate communication carriers (e.g. AT&T,
Verizon) and not regulate non-carriers (e.g. Apple) that existed at the time.35 Congress could
have included provisions giving courts the power to enforce warrants such as the one at issue
here as part of a more comprehensive security regulation plan, but it chose not to do so. Congress
reinforced that decision in 2013, when it failed several proposals that would have expanded
CALEA to Internet services. Congress addressed data encryption at least twice in the past
twenty-two years and rejected regulation of Apples encryption efforts both times, signaling that
a narrow interpretation of the All Writs Act is both plausible and consistent with legislative
intent. First Amendment doctrine combined with clear legislative intent suggests the court should
interpret the All Writs Act to be overridden in this case.
V.

CONCLUSION

For the reasons described above, the Court should deny the Governments motion to
compel and vacate its February 16, 2016 order.

35

See Communications Assistance for Law Enforcement Act, Federal Communications Commission, available at
https://www.fcc.gov/public-safety-and-homeland-security/policy-and-licensing-division/general/communications-assistance, see
also Max Eddy, The Real Reason the Feds Cant Read your iMessages. SecurityWatch (Apr. 4, 2013), available at
http://securitywatch.pcmag.com/security/310015-the-real-reason-the-feds-can-t-read-your-imessages (Soghoian [ACLU
Principal Technologist] told SecurityWatch this law [CALEA], mandated that industries build in intercept capabilities to their
networks. These industries included phone and broadband companies, but not companies like Apple.).
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Dated: April 25, 2016

By:

Lisa Patel
LISA D. PATEL

.
.

Law student for Amicus Curiae of Law

Student in Support of Apple
.

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