us-federal-government
Is there US law that can compel Apple to create software?
<p>It is my understanding that US law has jurisdiction or routinely compels corporations (BA, VZN) to: </p>

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

<p>Is there any <a href="https://www.apple.com/customer-letter/" rel="nofollow noreferrer">US law</a> or precedent that can <em>compel Apple to create new software</em> that aids law enforcement investigations?  </p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>Software code is <a href="https://www.eff.org/deeplinks/2015/04/remembering-case-established-code-speech" rel="nofollow noreferrer">considered "speech"</a> for first amendment purposes, so the government may not either restrict the publication of software or <a href="https://en.wikipedia.org/wiki/Compelled_speech" rel="nofollow noreferrer">compel</a> anyone to write software that they do not wish to create.</p>

<p>On the examples you give,</p>

<ul>
<li><p>Production of evidence such as customer records is controlled by the 4th Amendment; it is not considered "speech" under the 1st.</p></li>
<li><p>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.</p></li>
<li><p>Export controls on software were the topic of the Bernstein case: see the link above.</p></li>
</ul>
