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Professor Snyder Discusses Apple Encryption Case

Posted on Friday 2/26/2016
William C. Snyder

Visiting Assistant Professor of Law William Snyder provides his perspective on the Apple iPhone encryption case:

Despite the rhetoric, so far Apple has not told the Court that it will refuse to assist in the search of the San Bernardino killer’s iPhone.  The order compelling Apple to assist in the search specifically invites Apple to challenge its legality as unduly burdensome, which Apple did on Thursday, February 26th. Apple is asking the Court to vacate its order.

If the Court does not change its mind, Apple must comply.  If Apple fails to comply with a federal court order at the end of this adversarial process, it can and no doubt will be held in contempt, fined, its assets seized, and its corporate officers jailed. We have a government of laws, not corporations, and the idea that the law does not apply in cyberspace was buried in the 1990s.

There is no Fourth Amendment search and seizure issue, because a neutral and detached magistrate issued a search warrant for the phone and because the owner consents to the search.  Apple does not argue otherwise in its motion filed on Thursday.  Rather, it argues that there is a First Amendment free speech issue.  Essentially, Apple argues that software code is speech, the First Amendment restricts the government from compelling speech, and therefore the Constitution prohibits the Court from compelling Apple to provide code/speech to access the data on the phone.  This is a bizarre argument.  The government can and does compel speech every day.  Every subpoena ever issued for testimony or documents compels speech.  Every tax form compels citizens to answer questions – to speak.

As for reaching me, the best bet is to email anytime and I will call back.  I’ll try to be near the office telephone from 2:00 until 2:30 this afternoon, but then I need to leave to get to the 3:00 panel discussion.

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