Apple to Argue Free Speech Rights vs. FBI

In Apple's fight to knock down a court order requiring it to help FBI agents unlock a killer’s iPhone, the tech giant plans to argue that the judge in the case has overreached in her use of an obscure law and infringed on the company’s 1st Amendment rights, an Apple attorney said Tuesday.

According to the LA Times, Theodore J. Boutrous -- one in a pair of marquee lawyers the technology company's hired to wage its high-stakes legal battle -- outlined the arguments Apple plans when it responds to the court order this week.

At the heart of Apple’s response, Boutrous said, will be an objection to the use of the All Writs Act as the legal basis of the order compelling the company to assist the FBI. The act, which was first passed by Congress in 1789 and updated periodically, is a sweeping legal tool that allows judges to issue orders if other judicial avenues are unavailable.

In seeking the order, prosecutors said the act provided legal grounds to force Apple to write new computer software that would allow FBI agents to discover the phone's four-digit security passcode.
In recent legal skirmishes, law enforcement authorities have relied on a 1977 Supreme Court ruling that said the All Writs Act could be used to compel New York Telephone Co. to provide technology to enable investigators to track calls being made in a gambling operation.

But significant differences exist in the current case, experts have noted. For example, the phone company was a heavily regulated public utility and already had the technology needed to comply with the court's order.