[Cryptography] EFF amicus brief in support of Apple

[Allen]

On Fri, Mar 4, 2016 at 5:40 PM, John Levine <johnl at iecc.com> wrote:

> The argument in the EFF brief is much more subtle than "code is
> speech".  You can read it here:
>
>
> https://www.eff.org/files/2016/03/03/16cm10sp_eff_apple_v_fbi_amicus_court_stamped.pdf
>

The argument in the EFF brief is much more subtle than "code is speech"?
Like on page 13, where it says, "It is long settled that computer code
including the code that makes up Apple’s iOS operating system and its
security features including encryption, is a form of protected speech under
the First Amendment"?

While you're reading the EFF brief, also read the cited cases (which I have
done) and you'll see that the EFF's claim is not supported by the case
law.  There are in fact few precedents (i.e., it is far from "long
settled"), the cases are fact-specific (not generalized to all computer
code, as the EFF brief claims), there are no prior cases dealing with
Apple’s iOS operating system, and finally, the weight of the case law
distinguishes between expressive speech (which is protected) and activities
like building a non-expressive machine which are neither speech nor
protected.  The EFF does not have a strong brief, IMO.  Mischaracterizing
the law is not likely to get you very far in court.
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