Why Forcing Apple to Write and Sign Code Violates the First Amendment

Note that the focus of the EFF&#x27;s argument is not on writing the code, but on expressive act of signing the code. Part I of its argument establishes that the government cannot compel a company to <i>convey a message</i> it disagrees with. Part II argues that the act of conveying trust in code by signing it is still expression <i>even though it involves code</i>.<p>The EFF&#x27;s framing has the advantage that it doesn&#x27;t require the unworkable corollary that the government cannot dictate the content of code--and so operation of digital products--because &quot;code is speech&quot; in all circumstances.

Other amicus briefs from today:<p><a href="https:&#x2F;&#x2F;assets.documentcloud.org&#x2F;documents&#x2F;2746620&#x2F;Apple-Amicus-Brief-by-Airbnb-EBay-Twitter-and.pdf" rel="nofollow">https:&#x2F;&#x2F;assets.documentcloud.org&#x2F;documents&#x2F;2746620&#x2F;Apple-Ami...</a> Airbnb Inc., Atlassian Pty. Ltd., Automattic Inc., CloudFlare Inc., eBay Inc., GitHub Inc., Kickstarter PBC, LinkedIn Corporation, Mapbox Inc., A Medium Corporation, Meetup Inc., Reddit Inc., Square Inc., Squarespace Inc., Twilio Inc., Twitter Inc., and Wickr Inc.<p><a href="https:&#x2F;&#x2F;assets.documentcloud.org&#x2F;documents&#x2F;2746626&#x2F;Apple-Amicus-Brief-From-AT-amp-T.pdf" rel="nofollow">https:&#x2F;&#x2F;assets.documentcloud.org&#x2F;documents&#x2F;2746626&#x2F;Apple-Ami...</a> AT&amp;T Mobility LLC

Not worrying about what the law actually is for a moment, what I&#x27;m a bit curious about is how some here likely support the invocation of rights under the First Amendment for Apple in this case, yet will maintain that First Amendment rights for companies shouldn&#x27;t be recognized when other issues are at stake, such as a question of politics is involved (thinking the Citizens United case specifically). How does one resolve that contradiction in constitutional interpretation? (Yes I do know that historically constitutional rights have had partial applicability to companies recognized by courts... But even so that seems contradictory to the proper definition of a &quot;right&quot; guaranteed by the Constitution: either they apply or not.)

I wonder why they didn&#x27;t argue that it also violates the 13th Amendment&#x27;s prohibition against involuntary servitude.

Sort of off topic but I wonder why the most cited articles in the constitution are all amendments<p><pre><code> 1st - free speech 2nd - bear arms 4th - searches and seizures 5th - self incrimination 6th - cruel and unusual punishments </code></pre> I almost never hear any of the original articles being cited in any heated debate.

Would it be contradictory to be OK with this argument but against the logic of the Citizens United ruling?

I submit this is cynical. To call this speech is just misleading.<p>Laws will always be around to make people do things they don&#x27;t want to do. To twist this into some kind of speech issue is silly.

Doesn&#x27;t the government force recalls of products like fault car accelerator pedals? Presumably theses are software fixes which the companies are compelled to write?

Counterpoint: Since the government can compel you to testify about facts (without self-incrimination), compelled code-signing may not be a 1st amendment violation.<p>One could posit that code-signing is solely Apple stating that a given sequence of bytes has not been subsequently modified. You might even view Apple&#x27;s EULA - that includes &quot;AS IS&quot; clauses disclaiming warranty and fitness for purpose - as supporting this interpretation.

This story reminded me I had allowed my EFF membership to lapse. Fixed.

Why can we force automobile manufacturers to include seat belts and air bags?

Just wondering, what would be the legal case if this was not the USA?

The gov&#x27;t doesn&#x27;t need to get Apple to write or sign anything; they just have to subpoena the private key and the source code.