They can include these limitations in a contract which can be enforced like any contract.
replyFISA Section 702 (50 U.S.C. § 1881a) or CLOUD Act could be used to override any contractual terms that US government agencies may have agreed to. Those clauses would be unenforceable / unexecutable.
replyMore generally it would be overpowered by the Sovereign Acts Doctrine.
The facts aren’t identical to the 2008 Yahoo FISCR case but that case sets the tone for how any clauses like this would just be brushed under the rug.
I don't think they can, at least if they are making an argument for why the Defense Production Act should not apply to them. Their original argument is that they will not help with anything that is unconstitutional, such as the unlawful spying on American citizens, without a warrant.
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replyI don’t think Defense Production Act lets the government takeover what you produce, just that if you sell something you have to prioritize selling to the Feds. There is also precedent that code is speech and the government cannot compel speech (this came up during the debacle where FBI wanted a backdoor to unlock iPhones and Apple said no, we’re not building that)
replyIt’s slightly nuanced, but during COVID-19 the DPA was applied to GM for production of ventilator machines. GM had not yet ever made any ventilator machines, and had only just one week earlier begun laying the groundwork to partner with Ventec Life Systems to look into retooling their automotive electronics factory in Kokomo, IN to produce ventilators.
replyI agree that the Apple case indicates that there’s a lot of uncertainty around this type of issue, at least post 1953 when title II of the DPA expired after Youngstown Sheet & Tube Co. v. Sawyer (1952)