The company is also hoping to get its case kicked to Congress.
Two days before Apple must respond to a court’s request for assistance cracking a terrorist’s iPhone, details of the company’s legal plan have leaked.
Cupertino will reportedly argue in federal court that software code should be protected by the First Amendment as free speech.
As explained by Bloomberg, all iOS apps sold through the App Store include a cryptographic signature, telling an iDevice the program is approved.
In this case, some advocates believe Apple has a strong First Amendment claim, as it is being directed to add that same autograph—against its will—to software that would weaken security.
Last week, an LA District Court judge ruled that the tech titan must assist the U.S. government in the search of an iPhone 5c owned by San Bernardino shooter Syed Rizwan Farook.
The controversial order asks that Apple install a new mobile operating system, allowing the feds to bypass a setting that wipes the phone after 10 incorrect password guesses.
The FBI would then use brute force to unlock the device without deleting data.
But Apple CEO Tim Cook suggested that a backdoor created for the FBI could land in the hands of folks with nefarious intent.
Cupertino already handed over everything it had on the shooter from Apple’s servers, but the actual phone is encrypted for personal security purposes.
There is some precedent for arguing code as protected legal speech, Bloomberg said, pointing to the 1999 case Bernstein v. U.S.
Department of Justice. Historically, however, judges have also ruled that free speech does not apply to software.
A final decision may not be left up to a judge, though.
As reported by the Associated Press, Apple intends to tell a federal arbiter that its fight with the FBI should be handled by Congress, rather than determined by courts.
Silicon Valley executives—Facebook’s Mark Zuckerberg, Twitter CEO Jack Dorsey, Apple co-founder Steve Wozniak—have rallied around Cupertino in its stand-off with the government.
But one industry heavyweight is not exactly jumping to the company’s defense: Bill Gates on Tuesday stopped just short of saying Apple should not comply with the court’s order.
FBI boss James Comey, meanwhile, said on Sunday that the government does not “want to break anyone’s encryption or set a master key loose on the land.” Apple’s concern is that while that might not be the FBI’s intent, it might happen anyway if crafty hackers have their way.
Late last week, the Department of Justice filed a motion to force Apple to comply with the court’s original order.
The agency said it shared the iDevice maker’s concerns that information needs to be protected, but insists the FBI’s order does not compromise that goal.
Apple has until Feb. 26 to submit its response to the court.
The company did not immediately respond to PCMag’s request for comment.