In its fight with the government over security, Apple isn’t throwing in the towel. On Thursday, the Cupertino tech giant filed a motionto vacate the court order compelling the company to provide the FBI with access to an iPhone that belonged to one of the San Bernadino shooters. In the motion, Apple levels that the government’s request violates the First Amendment.
The motion outlines that forcing Apple to unlock the iPhone “amounts to compelled speech and viewpoint discrimination in violation of the First Amendment.” Apple’s argument rests on the idea that code is classified as speech, the government is requesting that Apple “speak” in a way that goes against the company’s viewpoint in the case of the San Bernadino shooter’s phone. In other words, it is compelling speech, which falls under First Amendment protections.
Now the question is—will Apple’s First Amendment defense work?
“There is precedent that supports this,” David O’Brien, a senior researcher at Harvard University’s Berkman Center for Internet and Society, said in an interview with FORBES.
Essentially, O’Brien explained, Apple is expressing itself when it designs security features on a phone. That being said, however, O’Brien stresses that this case is delving into very uncharted territory. It will be up to Apple to persuade the court that there is enough of a precedent to convince it that the company’s stance—that a company’s choice to design an encrypted security for its product—is protected by the First Amendment.