Apple may test speech recognition of legal kind

Published Mon, Feb 22 20164:11 PM EST

Breakingviews

Reynolds Holding

Apple may be set to test speech recognition of the legal kind. The tech giant's refusal to help unlock a mass shooter's iPhone opens a can of legal worms. U.S. national security, a more than 225-year-old statute and concerns expressed by survivors of the attack may force Chief Executive Tim Cook 's hand, but his privacy points are strong. A novel free-speech argument could give the company an edge. U.S. prosecutors escalated the battle on Friday, again demanding Apple produce software to make it easier for the FBI to hack a phone used by one of the perpetrators of a shooting that killed 14 people in San Bernardino, California, in December. Apple countered by publishing a new Q & A on Monday. The feds have the cooperation of the device's owner – the shooter's employer – as well as a warrant. But they can't get all the data they want unless Apple writes what it claims is "an entirely new operating system" with drastically weakened protections against a trial-and-error approach to guessing the passcode that will unlock the phone itself. The government asserts a narrow, one-off need; Apple, which has assisted in other ways, claims that the existence of compromised software would weaken the security of its operating system and potentially expose all iPhone users to surveillance. More from Breakingviews: Alphabet sinks further into antitrust quagmire The government is relying on the All Writs Act of 1789, which allows orders that help courts exercise their jurisdiction – one test being that they don't place an "unreasonable burden" on a company. How that fuzzy standard would apply to Apple, though, is anyone's guess. The company might, however, avoid the debate by asserting First Amendment rights. The argument would be that computer code is speech – as one federal court ruled in a 1999 decision that was withdrawn on a technicality – and that being forced to write it violates the U.S. constitutional privilege not to speak. That would fit with a trend toward increased corporate speech rights. Read More Santoli: Hedge funds' pain could be your gain In recent years, U.S. courts have, for example, excused employers from posting government-mandated information about workers' protections and struck down arcane Securities and Exchange Commission disclosure rules. Public sentiment may loom large in the iPhone case, and a legal brief planned by some San Bernardino survivors could boost the government's case. With both privacy and free speech on its side, though, Apple would be tough to beat. For more independent commentary and analysisfrom Reuters Breakingviews, visit breakingviews.com

The Apple store on Fifth Avenue in New York City.

Getty Images

Apple may be set to test speech recognition of the legal kind.

The tech giant's refusal to help unlock a mass shooter's iPhone opens a can of legal worms. U.S. national security, a more than 225-year-old statute and concerns expressed by survivors of the attack may force Chief Executive Tim Cook's hand, but his privacy points are strong.

A novel free-speech argument could give the company an edge.

U.S. prosecutors escalated the battle on Friday, again demanding Apple produce software to make it easier for the FBI to hack a phone used by one of the perpetrators of a shooting that killed 14 people in San Bernardino, California, in December. Apple countered by publishing a new Q&A on Monday.

The feds have the cooperation of the device's owner – the shooter's employer – as well as a warrant. But they can't get all the data they want unless Apple writes what it claims is "an entirely new operating system" with drastically weakened protections against a trial-and-error approach to guessing the passcode that will unlock the phone itself.