Imagine that you are in the business of making safes. One day, you devise a novel safe for storing valuables. The safe is quite hard to break into, which is of course one of its selling points. But your safe has an additional feature: its locking mechanism is voice activated, and can only be modified if you, the safe maker, say the following words: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”
Now suppose that one of the FBI’s most wanted criminals has bought one of your safes, and he is using it to store evidence of his misdeeds. The FBI goes to a judge and asks for a warrant and the judge grants one. The FBI raids the suspect’s home, grabs the safe, and starts to hammer away. But it’s too strong. It is not impossible to break open, but it will take a very long time and cost a lot of money. So the FBI goes back to the judge and says, “Please ask the safe maker to help us by swapping out the lock for one that we can crack more quickly.” The judge issues the order under the broad All Writs Act.
You, an innocent safe maker, are being asked by a federal judge to recite the pledge of allegiance. As Justice Jackson famously said in West Virginia State Board of Education v. Barnette, striking down as unconstitutional a statute that required schoolchildren to recite the pledge of allegiance: “Homey don’t play that.”
I suspect you know where I’m going with this.
Yesterday, my newsfeed, like yours, erupted as a result of Apple’s dispute over an order compelling Apple to write code in order to make it easier for the FBI to unlock a suspect’s iPhone. I’ve been looking into the constitutional rights that might limit the government’s ability to regulate encryption technologies, and so I read through my feed expecting to find a number of different constitutional arguments. Oddly, I found none.
Here, for example, is today’s New York Times describing the case: “The legal issues raised by the judge’s order are complicated. They involve statutory interpretation, rather than constitutional rights, and they could end up before the Supreme Court.” (Emphasis mine.)
No constitutional rights? I’m not so sure. In fact, I expect Apple to make a number of constitutional arguments regarding the order, some more creative than others. (There are other arguments one could make under the First Amendment alone, and under the right circumstances encryption may implicate the 2nd, 3rd, 4th, and 5th Amendments, but I will leave those thoughts for another time.) Let’s just consider for now Apple’s possible compelled speech claim.
First, let’s be clear about the order at issue. The U.S. District Court for the Central District of California has issued an order, under the authority of the All Writs Act, to compel Apple to take a number of steps to make it easier for the FBI to unlock the iPhone in question. (A nice explanation of why the FBI needs this assistance is here.) Many have interpreted the case as a question solely about the scope of the All Writs Act, which generally gives courts broad powers to enforce their orders. For example, Ben and Susan say that the courts have compelled third parties to take actions (not unlike replacing a safe’s locking mechanism) in order to assist law enforcement with a legitimate search. That is a plausible reading of one case. But we don’t have hard and fast rules about the limits of the All Writs Act. Just as importantly, we don’t know the constitutional limits of the Act.
Why might that matter here? Because code can be a form of speech. The lock-swapping mechanism required in this case would require Apple’s engineers to sit down at a computer and start writing. And that action, as courts recognized long ago, is speech. In Bernstein v. Department of Justice, the Electronic Frontier Foundation successfully argued that Daniel J. Bernstein, then a graduate student at Berkeley, had a constitutionally protected right to publish his source code, despite the government’s efforts to block it. (Fittingly enough, the code was for encryption software, which the government tried to suppress on the theory that encryption software is a munition subject to export controls.)
If code is speech, and the government is compelling Apple to code, then it looks an awful lot like the government is compelling speech. That does not resolve the issue, of course, but it opens up a new field for debate – one that has not receive enough attention. The government will respond to this claim by noting that Apple’s code is a far cry from the pledge of allegiance, and therefore does not raise the Establishment Clause concerns that applied in Barnette. Maybe. Apple will reply that their word is their most important asset, and that the federal government is compelling them to say something they do not believe.
Whatever the outcome in this very early stage of briefing – as Orin Kerr rightly points out, we still don’t have Apple’s reply! – it will be a surprise if this litigation does not implicate First Amendment concerns. The constitutional issues in this case are not trivial. Moreover, this is only the beginning – really, it is just the end of the first act – of a long debate about the proper scope of government authority over the digital tools that we use to communicate. In the near term, these debates may be resolved without reference to constitutional law, but that reckoning will come, sooner or later.