By Abby DeVore, Mary Salisbury
Technology is present in nearly every aspect of modern day society. Most Americans are heavily reliant upon at least one form of technological device. According to the Pew Research Center, 92 percent of Americans own a cellphone and 73 percent own some form of desktop computer or laptop as of 2015. On every individual’s personal device are thousands of text messages, dozens of voice mails and passwords, hundreds of emails, and other personal information people save under the assumption that nobody else, including the United States government, will be able to access them. Privacy of our information, whether virtual or not, has become something most Americans and most major corporations prioritize.
On December 2, 2015 in San Bernadino, California, 14 people were killed and 22 others were injured in a shooting and attempted bombing, both acts of terrorism (Benner, Lichtblau, New York Times). In an attempt to gain knowledge about the shooting and protect against future acts of terrorism, the FBI ordered Apple Inc. to rewrite its encryption safeguards to “unlock” the shooters iPhone. Although the FBI ended up dropping its case against Apple in late March, the initial order “set off a furious public battle on Wednesday between the Obama administration and one of the world’s most valuable companies in a dispute with far-reaching legal implications,” according to the New York Times.
Technology has undoubtedly complicated the law. The government is now faced with questions as to what qualifies as speech under the First Amendment and what forms of speech are protected in such a technologically advanced world. According to Business Insider, one of Apple’s main arguments against the FBI’s order was that the order was forcing them to rewrite their code which was created to give users privacy. Apple’s CEO, Timothy Cook, as well as the company lawyers believe this order undermined consumers right to privacy and violated their freedom of speech as the First Amendment states that one cannot force another to say or write something they do not want to.
Past cases such as Bernstein vs. the U.S. Department of State, and the Universal City Studios vs. Corley have set precedent for cases similar to Apple Inc. vs. the FBI and may have aided the Supreme Court in deciding if Apple’s argument was valid or not if the FBI had not dropped its case.
In the 1997 case, Bernstein vs. the U.S. Department of State, the Ninth Circuit Court of Appeals ruled that source code was in fact speech protected by the First Amendment and that the government did not have the power to prohibit its publication (BERNSTEIN V U.S. DEPARTMENT OF STATE, 945 F. Supp. 1279, 1997). Daniel J. Bernstein, a graduate student at the University of California at Berkeley challenged the U.S. Department of State, Energy, and Justice’s requirement that he get his creation of the mathematical algorithm he called “Snuffle” approved by the government prior to publishing its source code or discussing it at a mathematical conference. This case set precedence for many future cases in that Bernstein’s source code “Snuffle” was ruled proved to be equivalent to speech.
In Universal City Studios vs. Corley, decided by the Second Circuit Court of Appeals in 2001, Universal City Studios and others took Corley to court for posting “DeCSS,” a computer program that is designed to circumvent “CSS” (UNIVERSAL CITY STUDIOS V CORLEY, 273 F.3d 429 2nd Cir. 2001). CSS encrypts DVDs so they can only be played on authorized technology. Codes are already protected as speech under the First Amendment and laws pertaining to code such as the DMCA, Digital Millennium Copyright Act, are subjected to scrutiny and the scope of protection of code changes in most circumstances. In this case, the DMCA was held as constitutional because the DeCSS was harming plaintiffs by exposing them to piracy and creating a need to work on new, stronger safeguards. This pertains to Apple Inc. vs the FBI case because the FBI asked Apple to create something to decrypt Apple products, thus compromising the privacy and safety of Apple consumers since they assume they have a certain level of privacy from everyone, including the federal government.
The FBI dropped its case against Apple after finding another way to gain access to the shooter’s phone from an outside source, whose methods have not yet been made clear to the public. According to the Washington Post, “the stunning move averts a courtroom showdown pitting Apple against the government — and privacy interests against security concerns — that many in the tech community had warned might set dangerous precedents” (Zapotosky, Washington Post). While this ends the conflict within the courts it does not end the debate on whether the federal government can force a corporation to write code it does not want to write or the debate on what kind of privacy and security one can expect with use of technology. David Pierson, reporter for the Los Angeles Times expects this to lead to “an arms race in encryption tools” until legislation sets guidelines for both tech creators and law enforcers (Pierson, Los Angeles Times).
This case will be just one of many that will change the way privacy, security, and the rights of individuals using technology are viewed in the United States. With this case being dropped by the FBI, there is no longer a chance that it will be seen by the Supreme Court, however it sparked conversation and raised important questions regarding privacy and technology. Now, there may be more of an interest in Congress to create legislation surrounding technological security and the rights of the government.
Lichtblau, Eric, and Katie Benner. “Apple Fights Order to Unlock San Bernardino Gunman’s IPhone.” The New York Times. The New York Times, 17 Feb. 2016. Web. 03 Apr. 2016.
Pierson, David. “FBI vs. Apple: How Both Sides Were Winners and Losers.”Los Angeles Times. Los Angeles Times, n.d. Web. 03 Apr. 2016.
Sterbenz, Christina. “Apple Is Using 2 Main Arguments in Its Epic Fight against the FBI.” Business Insider. Business Insider, Inc, 25 Feb. 2016. Web. 03 Apr. 2016.
“Technology Device Ownership: 2015.” Pew Research Center Internet Science Tech RSS. Pew Research Center, 29 Oct. 2015. Web. 03 Apr. 2016.
Zapotosky, Matt. “FBI Has Accessed San Bernardino Shooter’s Phone without Apple’s Help.” Washington Post. The Washington Post, n.d. Web. 18 Apr. 2016.