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After the San Bernardino terrorist attack in 2015, the FBI sought to enlist Apple in its efforts to acquire potential evidence about the attack by accessing the contents of the cell phone used by the shooter Syed Rizwan Farook. The FBI claimed that the messages, contacts, and other information stored on Farook’s cell phone could lead them to potential co-conspirators who assisted in the attack or who were involved in planning other terrorist activities, or other relevant evidence. The FBI claimed that it needed Apple’s help because the cell phone in question embodied a number of security features familiar to iPhone users, including passcode protections and encryption controls protecting the cell phone’s contents. These passcode protections and encryption controls ensured that only the cell phone user himself – not Apple – was in possession of the access passcode, and further that: (1) the system could have been programmed by the user to erase all of the cell phone’s contents after ten unsuccessful attempts at guessing the user’s passcode; (2) passcode attempts could only be entered manually, not by a computerized data entry process; and (3) the time delay between each unsuccessful passcode attempt was increased after each such attempt, to the point where after enough unsuccessful passcode attempts, this time delay would become infinite. These iPhone iOS

security features frustrated the FBI’s attempt to access potential evidence on the shooter’s cell phone. In order to improve the Government’s likelihood of success in accessing the contents of the shooter’s iPhone, the Department of Justice and the FBI sought to compel Apple to assist it in these efforts by securing a court order compelling Apple to write a software program that would defeat certain of the security features and encryption controls on the shooter’s iPhone. Apple claimed that the Order was an unwarranted exercise of the court’s power under the All Writs Act, and further, that the Order violated Apple’s First Amendment rights.

In this essay, I briefly explore Apple’s argument under the All Writs Act, and then turn to a detailed examination of Apple’s First Amendment defense to the Government’s Order. I contend that, notwithstanding the fact that the government sought to compel Apple to engage in the production of computer code -- code that may incorporate expressive elements -- it is not clear that the government in this case was compelling Apple to engage in protected expression, nor that the Government Order in this case embodied a content-based or a viewpoint-based regulation of or compulsion of speech. First, as applicable precedent makes clear, although a government regulation of computer code may target such computer code because of its content, it may also target such computer code based on its functionality and without reference to its content. In the Apple case, the government was not “concerned with whatever capacity [the source code at issue] might have for conveying information to a human being, and that capacity . . . is what arguably creates a speech component….” Rather, the Government Order compelled the creation of computer code “solely because of its capacity to instruct a [device] to decrypt [and] [t]hat functional capability is not speech within the meaning of the First Amendment.” Because the Order at issue targeted computer code solely because of its functional capability “without reference to the content of the regulated speech,” the Order should be analyzed as a content-neutral regulation with an incidental effect on speech -- and therefore subject to, at most, intermediate scrutiny under the First Amendment. The reviewing court should subject the Government’s Order to the intermediate scrutiny applicable to content-neutral regulations that have incidental effects on expression, and should consider whether the Order served as substantial government interest that is unrelated to the suppression of free expression and whether the incidental restriction on speech burdened more speech than necessary to further that interest. In applying this test, the court should hold that the government interest in this case – to secure potential evidence related to a terrorist attack – was substantial and that the means used by the government – compelling Apple to produce source code to enable the government to access such potential evidence -- did not substantially burden Apple’s free speech rights, and did not burden substantially more speech than is necessary to further that interest.

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