The fight between Apple and the FBI (and the greater war brewing between Silicon Valley and the U.S. government) is not going to end with recent the San Bernardino iPhone case.

On Wednesday, in fact, court documents went public showing that since early October of 2015, Apple was ordered to access data on an additional 12 devices. Before all the dust settles, the fight between technology companies protecting the security of their devices (and their reputations with customers) may end up in the Supreme Court.

Here's the free speech argument Apple may end up using to defend itself and its encrypted devices.

Code is Speech

The argument that Apple is expected to use in federal court, according to a new report form Bloomberg, boils down to the following assertion: Code is speech, and should be protected from government interference as much as a person's right to write an essay without being edited or censored by federal authorities.

If it sounds like a newfangled idea, that's because it is. Code doesn't come to mind when the average person thinks of free speech, but it could be a form of it -- depending on your philosophical point of view: Is software just a detailed list of machine instructions or a unique, creative work by individuals or collectives that should be protected by the First Amendment?

It looks like Apple will argue that the App Store's authentication code, stamped on every app you download to tell your iPhone that the app is approved and safe, is a form of speech.

"The signature is part of Apple's security ecosystem; it's a promise that Apple believes this code is safe for you to run," explained director of the Stanford University Center for Internet and Security, Jennifer Granick, to Bloomberg. "The phone doesn't run software that Apple hasn't signed."

Since the FBI wants to compel Apple to put this cryptographic autograph on software that helps the agency crack into the information it wants -- against the company's will -- Apple is likely to argue that it's tantamount to compelling an individual to sign a document against her will.

Updating or Hacking the 1st Amendment?

The company's legal strategy is being developed by longtime Apple general counsel Bruce Sewell, who previously worked on the company's long-running patent war with Samsung. Apple has also recently beefed up the legal team, hiring former U.S. Solicitor General Ted Olson to help with the FBI case.

The success or failure of Apple's free speech argument falls on their shoulders, but the team isn't exactly concocting the legal tactic from thin air.

In the early technology era of the 1990s, pointed out Bloomberg, Dan Bernstein, a computer science graduate student at UC Berkeley, was denied a license by the government to publicly publish a cryptography tool he had created. Federal regulations require developers first have a license before they can publish encryption software.

Bernstein fought back, arguing that his source code was protected speech, and in 1999 won the case when the U.S. Court of Appeals in San Francisco ruled that his code was indeed free speech protected under the first amendment.

But compared to the hundreds of years of case law in the U.S., the concept is still new, and Apple's success in the case is not guaranteed.

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