The compelling speech argument would not have held up in court. Apple was putting on a show because they had already advertised to customers that they wouldn't unlock phones for law enforcement.
What? Apple was not putting on a show. What the FBI requested required actual software development to be done. You can't force someone to work for you.
Judges absolutely can force work and do it all the time. See the discovery process Uber is going through now. For an example more relevant to the Apple case, look at the Lavabit court orders.
The idea that writing software not intended for public release is compelled speech under the standard of Wooley v. Maynard is laughable. Nobody except a few gullible tech bloggers (are there any other kind?) took that argument seriously.
> Judges absolutely can force work and do it all the time. See the discovery process Uber is going through now. For an example more relevant to the Apple case, look at the Lavabit court orders.
Discovery is different. Laws already require you to retain various records for later discovery. That's just general "shuffle stuff around" work that doesn't really require much effort.
What the FBI was asking for was custom software development to be done to circumvent existing software and hardware functions.
> The idea that writing software not intended for public release is compelled speech under the standard of Wooley v. Maynard is laughable.
Not sure I follow. The distinction wasn't public versus private release; it was writing the custom software itself. The whole "you can keep it and destroy it afterwards" didn't really matter. The FBI can't simply insert itself into your business, have engineers reprioritized from what they're currently working on and expect you to produce something for them.
> What the FBI was asking for was custom software development to be done to circumvent existing software and hardware functions.
Which is exactly what was requested in the Lavabit case, to the letter. I used the discovery example to show that courts compel work all the time, which you originally claimed they could not do.
> Which is exactly what was requested in the Lavabit case, to the letter.
What you're saying is not true. If you take a look at what happened in the unsealed documents regarding Lavabit [1] the FBI wanted a copy of the SSL private key. That's it. The owner of Lavabit offered to do some coding so they could target the meta data of a single person but it was rejected so he ultimately shut his service down.
> I used the discovery example to show that courts compel work all the time, which you originally claimed they could not do.
Discovery is seeking data that already exists and is reasonably accessible. You can't use discovery to force someone to write software the doesn't exist to provide additional functionality to a product. The FBI had to resort to using the All Writs Act in order to attempt to do this and backed down before it could go through and set a precedent. I'd suggest taking a look at how electronic discovery [2] works.
Also the HN discussion around the Apple vs FBI case was rather interesting and is full of good information [3].
"The case began in June, when Texas-based Lavabit was served with a “pen register” order requiring it to give the government a live feed of the email activity on a particular account."
"Levison resisted the order on the grounds that he couldn’t comply without reprogramming the elaborate encryption system he’d built to protect his users’ privacy."
"So in July the government served Levison with a search warrant striking at the Achilles’ heel of his system: the private SSL key that would allow the FBI to decrypt traffic to and from the site, and collect Snowden’s metadata directly."
In other words, they asked him to write software to get just metadata for Snowden's correspondences and when he delayed, they requested everything.
> You can't use discovery to force someone to write software the doesn't exist to provide additional functionality to a product.
"A party may serve on any other party a request ... to produce ... any designated documents ... stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form."
If the amount of translation is infeasible without writing scripts, you can be forced to write scripts.
But again, the whole point of this discovery tangent was to show that courts can and very often do "force someone to work for you," which I will assume you now concede is true. Let's stick to the Lavabit case and what constitutes illegal compelled speech, as these are the points on which we still disagree.
> As I said, that distinction matters for Apple's spurious "compelled speech" argument.
It does not. Just because a government orders you to do something privately doesn't mean it isn't compelled speech. Regardless, see my reply to your other comment.
> Just because a government orders you to do something privately doesn't mean it isn't compelled speech.
As I said earlier, the standard for illegal compelledspeech was defined in Wooley v. Maynard, prior to which there was no such thing as illegal compelled speech. Do you actually have an argument about why forcing the writing of unreleased software is illegal compelled speech, or are you going to keep saying it as a truism?