[cmurf]

If you have done nothing wrong, broken no law, can a court order you to write a letter or a book? If not, then on what basis does a court order someone (a company) to write code? This isn't just a matter of removing the anti-bruteforcing code, the FBI has also asked for a way to quickly iterate passwords without using the on-screen keypad. That's creating new functionality, not just removing existing functionality. This seems specious.

This almost certainly ends up at the Supreme Court, but due to the national security implications of the case it's plausible certiorari petition could be made by either Apple or the government. And yet we have a 4-4 court right now.

[rayiner]

I think most technical people, under ordinary circumstances, if asked to make a build of some software with a security feature disabled,[1] would not consider it akin to being asked to create something new akin to writing a letter or a book.

[1] Or really any small tweak. I can remember at least a couple of times being asked to provide someone with a special build of software I worked on that, e.g., logged something it didn't ordinarily log to help debug an issue a customer was having that we couldn't reproduce in-house. Can't say I ever thought of that as creating new software, even if I added some fprintf statements that weren't there before.

[cmurf]

Adding a means for FBI to input passcodes via Lightening connection instead of the touch screen is certainly a non trivial addition.

Can a court order someone to delete phrases from a letter or book?

Code is protected under copyright law. Code is a form of speech. How is either a court, or law enacted by Congress, telling someone what to write or delete what's already written, not abridging speech? Why is code different?

[kenshaw]

This would not be a "freedom of speech" issue, as it's not preventing speech (which is what the 1st amendment protects). It's compelling (arguably) a significant amount of labor / work, that in the end results in compelled speech (code) -- in a way, this is more of a 4th (due process) and 14th amendment issue (equal protection / indentured servitude [slavery]).

A bigger question might be if the government has the ability to require Apple to do this without compensation, and if they do, then who gets to set the rates or define the project -- Apple or the government? Possibly, a better tact/approach for Apple (discounting the setting of precedent, etc) would be to bill the government $700-$1000/hour per developer, and assign a team of 200-300 developers to this, with an expected delivery date of 3-5 years. As the government starts paying down $100 million/month for in effect, nothing, very quickly the public would become outraged and force the question of compensation into court. At the end of the day, the people/government would have to decide if its worth either 1) forcing Apple to do this uncompensated or 2) if it is worth the cost to decrypt one phone -- neither I believe would be widely popular/supported.

Regardless of what happens, unless the FBI withdraws this request, which is highly unlikely -- they have clearly chosen this case due to the terrorism connection to be its legal Alamo -- this is going to end up in front of the Supreme Court.

[cmurf]

I agree the compelling of work is more convincing than the court compelling speech stated or withheld. But code is a language, it's not just building, it's something of a hybrid. And the court order requires both the creation of new code, as well as the inhibition (deletion) of previous code, so it's telling Apple to change their speech as well as their reputation using their own labor to do so.

Almost certainly this expertise is billable to the government, and won't take $100 million, I'd be surprised if it took $1 million, but what do I know?

The more concerning thing is FBI almost can't lose. If they lose the case in court, they've put pressure, will continue to put pressure, on the public and Congress to change this in law, which is why I think it's important to establish constitutional reasoning for why this is a bad idea.

[kenshaw]

Well the question would be, who gets to dictate the size/scope of the project and the rate charged to the government? Is any person outside of Apple really qualified to make that claim? It's not open source code, so Apple could make any claim they wanted. Also, who says they would have to put their 'A' players on this? Why not back-burner that with specially hired 'E', and 'F' level developers? Charging $700-$1000/hour might seem high, but on a custom development project may not be too far out of line.

At the end of the day, there really is no way the government will succeed here, you really can't force Apple's developers to do this, as they could just tell the government to go pound sand. The only way they could get it done is through threat of violence/incarceration or by gigantic sums of money. The government can't really argue that Apple with its billions in profits, that their developers' time isn't worth a few billion.

[zardo]

>It's not open source code, so Apple could make any claim they wanted.

You don't get to play games like this with the judiciary. They can require you to allow an outside auditor to review the code.

[rayiner]

The First Amendment doesn't protect written works, it protects expression. Non-written works can be expression (black arm bands worn in protest), and written works can be functional and non-expressive (e.g. a legal contract). Code is only speech when it's being used as a form of expression. If it's just used to make a commercial product go, it's not speech.

[harryh]

> How is either a court, or law enacted by Congress, telling someone what to write or delete what's already written, not abridging speech?

Abridge means to curtail. Telling someone to create something doesn't curtail anything.

[harywilke]

Adding an extra log line is a bit different than custom tailoring a hardware id check that can't trivially be reverse engineered by a highly motivated party.