Forget the 1st Amendment, Apple to plead the 5th in iPhone crypto flap

There's been ongoing dialogue about Apple's upcoming legal strategy in its battle with the government about whether it should be required to comport with a court order mandating that the Cupertino (CA) gadget maker assist the authorities in accessing a locked, encrypted iPhone used by one of the San Bernardino (CA) shooters. One legal angle that has largely been overlooked is the Fifth Amendment. One legal angle Apple is also expected to assert is that the Fifth Amendment protects it from having to comport with the order.

That's according to Apple sources familiar with its strategy. For the general public, the Fifth Amendment is best known for the privilege against compelled self-incrimination. It's the amendment invoked by Martin Shkreli, the Big Pharma bad boy who is at the center of a securities fraud investigation and is refusing to assist Congress in probing pharmaceutical prices. The idea here is that the government is conscripting Apple to build something that it doesn't want to do. That allegedly is a breach of its "substantive due process." The government is "conscripting a company's employees to become agents for the government," apparently. The doctrine of substantive due process, according to Cornell University School of Law, holds "that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest."