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It is my understanding that US law has jurisdiction or routinely compels corporations (BA, VZN) to:

  • turn over customer data to law enforcement(VZN)
  • how to build systems (in regulated products: BA aircraft)
  • prevent products that may NOT be built \ exported

Is there any US law or precedent that can compel Apple to create new software that aids law enforcement investigations?

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    No, otherwise they would have unlocked suspected terrorist phones by now. They're been issued writs on at least 9 occasions but have not complied with any order. See en.wikipedia.org/wiki/FBI%E2%80%93Apple_encryption_dispute – Ron Beyer Jan 19 '20 at 5:55
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    And not just that, in many cases Apple will be incapable of providing such software as the data is either encrypted by a 3rd party and/or not stored on their servers or phones and/or encrypted with one way encryption that Apple nor anyone else can reliable decrypt (think Blowfish salted password encryption). – jwenting Jan 21 '20 at 8:58
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The U.S. could pass a law directing Apple to create software for fair compensation. Similar statutes have been passed in wartime compelling companies to do all sorts of things and companies don't have all of the rights of individuals. If it can be done (not obvious in the case of existing products in the market place), it might be possible for the government to compel it to do so; if it can't be done, it can't be compelled and not all things are possible retroactively.

There would also be a constitutional contracts clause issues with such a law impairing contracts between Apple and its customers when applied to existing phones retroactively.

Whether it could require Apple to create a law enforcement back door depends upon whether 4th Amendment privacy rights trump the creation of a means to do so. There is an expectation of privacy in electronic records, but it is not absolute. But, there is no law on the books requiring this from Apple. It does not flow naturally from existing powers of law enforcement under existing statutes. It goes beyond what a subpoena would ordinarily require someone to do, and a subpoena is the main means by which governments compel people to provide information.

In my opinion, a court faced with that question would rule that a statute requiring Apple to do this prospectively would be constitutional, but no such statute exists. However, this is currently an open legal question because there is no statute of the kind that have been litigated in a manner that produced a binding precedent.

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Software code is considered "speech" for first amendment purposes, so the government may not either restrict the publication of software or compel anyone to write software that they do not wish to create.

On the examples you give,

  • Production of evidence such as customer records is controlled by the 4th Amendment; it is not considered "speech" under the 1st.

  • Regulating products such as aircraft and medical devices does not impact the 1st because the control is not over the software but over the product of which it forms a part. If someone wanted to publish the software on its own then the regulations would not apply.

  • Export controls on software were the topic of the Bernstein case: see the link above.

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After a crime has happened, Apple can be compelled to produce information that is useful to solve the crime, and if writing software was necessary to do so, they would have to write that software. I'm not aware whether Apple would have to be compensated to do so. I also don't know what would happen if Apple's software engineers who are capable of writing that software would refuse to do so. I don't think the state can force an employee, and I don't think the state can force Apple to put pressure onto such an employee.

However, one of Apple's design goals for iPhones is that no hacker should be able to extract data from a customer's iPhone. And Apple has quite reasonably decided that in order to achieve this goal, Apple itself should be completely incapable of extracting data from a customer's iPhone. And because of that, Apple is not capable of writing software to extract data from a criminal's phone. Since Apple is not capable of writing such software, Apple cannot be compelled.

What the government wants is to create software today so that Apple can break into future iPhones. That would be quite possible. But since no crimes have been committed (yet) using future iPhones, Apple cannot be compelled to do so either.

Practically, the NSA has twice had attack software stolen from them that caused immense problems for example to the UK health service. And compared to the NSA, the FBI are amateurs. So there is no way that Apple could produce such software, give it to the FBI, and it doesn't end up in the hand of criminals who use it to rob ordinary citizens, or in the end of state actors who would use it to rob confidential information from politicians, law enforcement, military, important companies etc.

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    I do not think the government has prevailed on any case of compellingly anyone to write software and I don’t think the government has even asserted they have that power. They are just pressuring Apple to help. What can you cite to establish that if writing software was needed in order to produce validly requested information they would need to do so? – George White Jan 19 '20 at 17:17
  • the government can get a warrant to force Apple to hand over the data, AFAIK they can NOT force Apple to provide the means to decrypt said data. At least not in the USA, in other countries the government indeed does have that power (which is currently a hot issue in Germany for example where the government wants to force website owners to hand over the login credentials of dissidents to the police). – jwenting Jan 21 '20 at 8:56

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