>Part I of its argument establishes that the government cannot compel a company to convey a message it disagrees with. Part II argues that the act of conveying trust in code by signing it is still expression even though it involves code.
Conveying to whom? I think this is where the argument falls apart. Yes, Apple signs updates as a way of conveying their veracity to users. But Apple is not being forced to send this update to anyone, much less vouch for its veracity.
Forcing Apple to publish this update to iPhones at-large would be compelled speech, in my opinion.
I'm not convinced by the argument that code-signing has some special status, and should be treated differently than other technical machinery. Let's do a little thought experiment. Let's say that Apple has a database with everyone's iPhone PIN in it. Except that this database is held in a machine, owned by Apple, with similar security as an iPhone 5C. It can release the PIN to the corresponding end-users, but only after successful authentication with their password. It has simple software checks to prevent Apple's employees from querying arbitrary people's PINs. To retrieve someone's PIN in response to a court order, Apple would need to update the code on this device to allow arbitrary PIN queries. This would require signing that update. Could the government compel them to do that?
You should read the amicus if you actually want those questions answered.
Specifically-
>It makes no difference that the Apple’s edited code and signature will be communicated only to the government or internally. The compelled loyalty oath struck down in Speiser v. Randall, 357 U.S. 513, 515 (1958), required those veterans applying for benefits only to submit a form to the government. The loyalty was unconstitutional despite the fact that they were not required to make any type of public affirmation. Id. at 529
An oath of political loyalty, kept as government record, as a requirement for receiving government services, is very different than being forced to use technical machinery to hack a particular device for which the government has established its right to access.
The specifics of either case don't matter in what EFF is saying there. That is the point of case law. The court ruled that the oath was illegally compelled speech, which means that speech can remain protected (by the 1st amend.) even when it isn't public speech.
I haven't read the case that the EFF is citing, but here's Wikipedia's summary of the legal reasoning, which is what precedent consists of:
The U.S. Supreme Court in its review asked a more basic question: With the loyalty oath has California chosen a fair method to determine whether a tax exemption claimant is in fact someone to whom the criminal acts specified applies. In other words, though it is reasonable to deny a claimant a tax exemption if the claimant is involved in a criminal behavior, has the state arrived at a mechanism which demonstrates the criminal behavior?
The court ruled that because the state requires the claimant to show they are not advocating state overthrow and hence are not criminals within the applicable laws, the loyalty oath requirement to obtain the tax exemption is unconstitutional. The burden of proof for a criminal action rests on the state and not on the individual private citizen. In other cases, the Supreme Court has upheld the constitutionality of loyalty oaths requirements but those involved public officials and not private citizens.
If Wikipedia's summary is accurate, this case is not very convincing as precedent for the current Apple cases.
=========================================
HackerNews is rate limiting me, so here's my reply to the below:
=========================================
My point is that when they sign and publicly release updates, they are in fact engaging in speech (protected speech, I would emphatically argue). They are telling all of their users that this update is trustworthy and authentic.
When they comply with the current court orders, there is no such communication to a human being. Apple is not communicating anything to anyone. The government of course knows that the update isn't authentic, they're the ones compelling them to produce the update. They are hacking a machine, not engaging in speech.
You stated "Apple is not being forced to send this update to anyone" and stated that it would be compelled speech if they had to publish it "at-large". Which raises the question: is compelled speech, made only to the gov't, illegal? That case shows that compelled nonpublic speech can be unconstitutional. Do you disagree?
=========================================
HackerNews is _also_ rate limiting me, so here's my reply to the below:
=========================================
Ah, okay. I understand your perspective but completely disagree. I think the act of writing the code/speech/doing the signing is what should be protected.
That thought experiment is an entirely different case, and yes Apple regularly provides iCloud backups to law enforcement.
Apple does not own the phone, nor does it posses the data. In the case where apple owns the server and a customer's data resides on it the court may compel Apple to provide the state the evidence. Similarly, if Apple posessed the key to the device they would be compelled to provide it.
Apple has intentionally designed the system so that users are able to use their phone without storing the data or encryption key on Apple's servers to avoid that thought experiment because everyone agrees that that thought experiment leads to apple having to provide the keys/data.
Also, Apple doesn't have to update the code, they need to provide the PIN, how they do it is completely up to them. If they refuse a search warrant will be issued and the US Marshalls will seize the evidence.
Attacking the EFF's argument more directly, every court order sent to Apple in the past compelled actual speech in forcing Apple to tell an employee to cooperate with the order, regardless of whether Apple agreed with that speech. The courts have put common-sense limits on free speech (e.g., Oliver Wendell Holmes's "falsely shouting fire in a theatre"), and this looks like an obvious case of such a limit.
Conveying to whom? I think this is where the argument falls apart. Yes, Apple signs updates as a way of conveying their veracity to users. But Apple is not being forced to send this update to anyone, much less vouch for its veracity.
Forcing Apple to publish this update to iPhones at-large would be compelled speech, in my opinion.
I'm not convinced by the argument that code-signing has some special status, and should be treated differently than other technical machinery. Let's do a little thought experiment. Let's say that Apple has a database with everyone's iPhone PIN in it. Except that this database is held in a machine, owned by Apple, with similar security as an iPhone 5C. It can release the PIN to the corresponding end-users, but only after successful authentication with their password. It has simple software checks to prevent Apple's employees from querying arbitrary people's PINs. To retrieve someone's PIN in response to a court order, Apple would need to update the code on this device to allow arbitrary PIN queries. This would require signing that update. Could the government compel them to do that?