Beyond Privacy v. Security

The privacy-versus-security question is pressing enough in its own right, but Apple's liberty argument in its Motion to Vacate the order for it to develop new software has implications that are just as heavy. In other words, the issue is whether a government can require a private company to develop a new product which the company does not want to develop. Can it require the company to expend its own resources in acting against its own interest? Can it compel speech on the company's part and deprive the company of a liberty interest without due process, all for the sake of an investigation which, the government acknowledges, is a fishing expedition?

If the government can invoke the All Writs Act to compel Apple to create a special operating system that undermines important security measures on the iPhone, it could argue in future cases that the courts should compel Apple to create a version to track the location of suspects, or secretly use the iPhone's microphone and camera to record sound and video.  And if it succeeds here against Apple, there is no reason why the government could not deploy its new authority to compel other innocent and unrelated third-parties [sic] to do its bidding in the name of law enforcement.  For example, under the same legal theories advocated by the government here, the government could argue that it should be permitted to force citizens to do all manner of things "necessary" to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant, or requiring a journalist to plant a false story in order to help lure out a fugitive, or forcing a software company to insert malicious code into its auto-update process that makes it easier for the government to conduct court-ordered surveillance.

Apple Motion, 2/25/16, at 25-26.

If corporations are people (my friends), if the government prevails here then how is any individual's skill set safe from being drafted into service anytime it's convenient for government ends?

Apple notes in its conclusion that "examples abound of society opting not to pay the price for increased and more efficient enforcement of criminal laws" (Id. at 35), and points to the constitutionally-protected rights against self-incrimination and warrantless searches. It's frustrating that they buried this point, both in terms of writing style (never raise new arguments in the conclusion) and from an advocacy perspective, but the point still illustrates that freedom from government intrusion is absolutely necessary to U.S. national identity. Given that the government's initial request for an order compelling Apple to create this product was made ex parte, this is Apple's first chance to put its arguments before the court, and its first chance to force an answer from the government.

Who knows if this is another hard case making bad law, or if in time we'll look to it as a reliable precedent?