Apple Lawyer: Keeping Shooter’s iPhone Locked Is First Amendment Right

A lead Apple lawyer also says gadget giant plans to argue DOJ is fighting in the courts because it can’t win in Congress

Apple plans to argue that its refusal to build a backdoor key to a locked terrorist’s iPhone is protected by the First Amendment as free speech.

Theodore J. Boutrous Jr., a lead attorney for Apple, said the crux of gadget giant’s argument will be to attack using 200-year-old statute known as the All Writs Act as overreach, speaking to two papers late Tuesday. The company will also fight to move its battle to the realm of lawmakers rather than judges.

Boutrous prebriefed the Associated Press and the Los Angeles Times on Apple’s planned defense in its fight with the FBI and Justice Department.

Last week, the DOJ won a court order forcing the company help bypass a lock on an iPhone used by one of the shooters in the San Bernardino attack that killed 14 people in the December. Apple made headlines when CEO Tim Cook said the company would refuse. Its official legal response is due this week.

Boutrous said courts have previously determined that writing computer code is a kind of expressive speech, protected by the First Amendment. “The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech,” he said to the Times.

He also indicated Apple would emphasize that the debate — how to balance protecting digital security and safeguarding the public from potential attacks — is something best left to lawmakers. “It is not appropriate for the government to obtain through the courts what they couldn’t get through the legislative process,” he said to the Times.

Cook has previously indicated Apple wanted to move this fight out of courts and into Congress.

In a public Q&A and an internal memo to employees, Cook said the “best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology and civil liberties to discuss the implications for law enforcement, national security, privacy and personal freedoms.”

Apple, which has a stockpile of more than $200 billion in cash and marketable securities at its deposal, could have greater influence over the outcome of the contest if it were fought on Capitol Hill, rather than winding its way through the courts.