[Cryptography] EFF amicus brief in support of Apple

Allen allenpmd at gmail.com
Tue Mar 8 15:58:17 EST 2016


> forcing Apple to sign code it does not want to sign is clearly expressive

Again, I think you're clearly wrong.  I've already commented here about the
speech aspects of the code itself (I think that needs to be determined on a
case-by-case basis based on the specific content, form and intent of the
code), so I won't repeat that here in detail.  With regard to the
"signature":

First, the “signature” at issue in this case is simply a numeric value that
computer scientists have decided to call a “digital signature”.  Despite
the same name, it might not be a legal signature at all in the way it is
used here.  That notwithstanding, if a company built a combination safe,
and the court issued a search warrant for the safe, there would be no
question the court could order the owner of the safe to unlock it using the
combination.  A company might also build a safe with a signature-controlled
lock.  For this type of safe, the owner might have to use a stylus to write
their signature on an entry pad, and upon detecting the correct signature,
the safe would unlock.  There would again be no question the court could
order the owner of that safe to use the stylus to write their signature and
unlock the safe.  Finally, a company might build a “smart safe”, where the
owner could write both a person’s name and then a signature, and the safe
would then unlock only for the identified person.  There would again no
question the court could order the owner to use the stylus to write “FBI”
and their signature to unlock the safe for the FBI.  There is nothing
expressive about the unpublished "signature" that Apple is being asked to
provide in this case.  It is simply a numeric code that opens a "smart
lock".

I am in favor of Apple prevailing in this case (on other grounds), but I
see no merit to the First Amendment claims.

Now, with all that said, if Apple wanted to strengthen its position for
future cases, instead of signing the code, it could include with the code a
declaration that read "I, Apple Corporation, do hereby affirm under penalty
of perjury that the attached code which hashes to the value
0x746547493947363748 was prepared by and is endorsed by this Corporation to
run on an iPhone model XXX.  Signed this 8th day of March, 2016, by Apple
Corporation /Digital Signature/"  The loader code could then be changed to
look for the signed affirmation rather than just the signed code.  That
might get you over in a future case, but to make the argument now that the
current digital unlock code is equivalent to an affirmation or endorsement
might only diminish the chance of that working in the future.
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