Courts and Code: Apple and the San Bernadino iPhone

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.

Works Cited

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.

Private Companies and Freedom of Expression

By Greg Frank and John Cole

There have been several court cases regarding the right of private employers to restrict the freedom of expression of their employees. The primary piece of legislation referenced in cases concerning this issue is Title VII of the Civil Rights Act of 1964.

Title VII of the Civil Rights Act of the 1964 states, “to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.” This law prohibits the mistreatment of applicants or employees based on religious beliefs, allowing employees to be subjected to various forms of harassment due to religious views, denying reasonable employee accommodation, and the retaliation on behalf of the employer against any employee who participates in protected activity (Liptak). Even with the current law in place for 52 years, there are still cases to this day that require the interpretation of Title VII of the Civil Rights Act of 1964.

There have been some recent examples of this issue being called into question in court. At the end of March this year arguments were heard in the Zubik v. Burwell case. This was a case with seven petitioners, including Pittsburgh Bishop David Zubik and the Little Sisters of the Poor. The respondent in this case was United States Secretary of Health and Human Services, Sylvia Burwell. The clergy are objecting to a rule from the Department of Health and Human Services that states they must provide employees with free contraception or notify the government and have their employees’ health insurance plans provide independent coverage. This case, and other recent ones, deal specifically with freedom of religious expression. The passing of justice Antonin Scalia will complicate this case as the eight-justice panel could be split 4-4 on the issue after Scalia voted in favor of Hobby Lobby in the Burwell vs. Hobby Lobby Supreme Court case which was decided by a 5-4 majority.

The Burwell v. Hobby Lobby case established that for-profit corporations have the ability to opt-out of contraception coverage established in the Affordable Care Act  for religious reasons (Hobby Lobby Case). In Zubik v. Burwell, the plaintiffs are attempting to expand the religious freedom of the corporations which they believe is restricted by a two-page form that employers must fill out explaining their reasoning behind opting out (Banett). The plaintiffs believe employers should not have to fill out the two-page form which exempts them from providing the contraceptive coverage. Despite the issue of religious freedom in compliance with the Affordable Care Act having largely been settled in the Hobby Lobby case, this attempt to expand upon the Hobby Lobby decision is what has the Supreme Court listening to the case.

The Affordable Care Act  was signed into law by President Obama in 2010 and upheld by the Supreme Court in 2012. One of the key mandates in the ACA is that it requires companies to pay for insurance coverage for contraception for their employees. Hobby Lobby, which is a family owned company that specializes in arts and crafts based out of Oklahoma City, Oklahoma, argued that the store should not have to provide contraception coverage to their female employees arguing that the law infringes upon their religious liberty. In September of 2012, Hobby Lobby filed a suit in the U.S. District Court over the ACA’s mandate to provide “four specific potentially life-terminating drugs and devices” (Hobby Lobby Case). In November of 2013, Burwell v Hobby Lobby was taken up by the U.S. Supreme Court in regards to corporations having to provide contraception for their employees despite the employer’s religious beliefs. In a 5-4 vote on June 30, 2014 in the Supreme Court ruled, “the contraceptive mandate, as applied to closely held corporations, violates the Religious Freedom Restoration Act of 1993. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.” (Supreme Court).  As a result, Hobby Lobby does not have to adhere to the Affordable Care Act mandate to supply employees with contraceptive coverage because Hobby Lobby believed that providing the coverage was interfering with the religious practices of its employees (Religious Freedom Restoration Act of 1993).

Another recent case that dealt with religious freedom and employers was EEOC v Abercrombie & Fitch. In 2008, Samantha Elauf at the age of 17, applied for a job at an Abercrombie & Fitch Store at the Woodland Hills Mall in Tulsa, Oklahoma. Elauf, a practicing Muslim, wore a black hijab to the interview, but did not tell her employer why she was wearing the headscarf. Elauf was ultimately not hired because the company claimed her headscarf broke the store’s dress code or “look policy.” After Elauf was denied employment with this Abercrombie & Fitch store, she filed a claim with the Equal Employment Opportunity Commission (EEOC) that she was denied employment based on religious discrimination. The EEOC then filed a suit against Abercrombie & Fitch on the basis that they denied her employment based on religious discrimination and failing to accommodate her religious beliefs by denying her to wear a hijab. Abercrombie argued that it was up to the potential employee (Elauf) to request for accommodation. This case was first heard by the District Court and “granted summary judgement on liability to EEOC” after deciding with the established evidence that Abercrombie was on notice of Elauf’s faith when she showed up to the interview with a hijab and denying her employment was religious discrimination (EEOC). Abercrombie appealed this decision and the case was then taken to the U.S. Court of Appeals for the 10th Circuit. The Tenth Circuit Court sided with Abercrombie & Fitch ruling that the employer was not given sufficient notice of Elauf’s religious beliefs when she interviewed with her hijab and that this would cause a contradiction with the store’s dress code. The case then was heard by the U.S. Supreme Court after the Tenth Circuit ruled in favor of Abercrombie & Fitch. In an 8-1 decision, on June 1, 2015, the U.S. Supreme Court sided with the EEOC over Abercrombie & Fitch. Justice Antonin Scalia stated, “Title VII forbids adverse employment decisions made with a forbidden motive.” and continued on this point during his writing that, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” (New York Times) (Supreme Court).

In conclusion, private employers and companies have religious freedom by being able to deny the mandate in the ACA which states they must provide for contraceptive coverage, but employers do not have the right to use someone’s religious practice to determine whether they are capable of working at their company. However, with the Zubik v Burwell case ongoing, the degree to which employers have the right to provide employees with religious freedom is uncertain.

Works Cited

“Abercrombie Resolves Religious Discrimination Case Following Supreme Court Ruling in Favor of EEOC.” N.p. 28 July 2015. Web. 05 Apr. 2016.

Banett, Carter. “The Zubik v. Burwell Case, Explained.” USA TODAY College. N.p., 18 Apr. 2016. Web. 19 Apr. 2016.

Brodsky, Alexandra, and Elizabeth Deutsch. “How Civil-Rights Law Could Overturn Hobby Lobby.” Bloombergview.com. N.p., 21 July 2014. Web. 5 Apr. 2016.

“Equal Employment Opportunity Commision v. Abercrombie & Fitch Stores, Inc.” SCOTUSblog RSS. N.p., n.d., Web. 05 Apr. 2016.

H.R. 1308– 103rd Congress (1993-1994): Religious Freedom Restoration Act of 1993.” N.p., n.d. Web. 19 Apr. 2016.

“Key Features of the Affordable Care Act.” HHS.gov. N.p.,07 June 2013. Web. Apr 5 2016.

“Know Your Rights: Title VII of the Civil Rights Act of 1964.” AAUW EMPOWERING WOMEN SINCE 1881. N.p., n.d. Web. 05 Apr. 2016.

Levine, Marianne. “Supreme Court Rules against Abercrombie in Hijab Case.” Politico. N.p., 1 June 2015. Web. 05 Apr. 2016.

Liptak, Adam. “Muslim Woman Denied Job Over Head Scarf Wins in Supreme Court.” The New York Times. 01 June 2015. Web. 05 Apr. 2016.

Liptak, Adam. “Supreme Court Rejects Contraceptives Mandate for Some Corporations.” The New York Times. 30 June 2014. Web. 05. 2016.

McGough, Michael. “The Supreme Court Floats a Contraception Compromise.” Los Angeles Times. 29 Mar. 2016. Web. 05 Apr. 2016.

“Questions and Answers: Religious Discrimination in the Workplace.” N.p., n.d. Web. 05 Apr. 2016.

“SUPREME COURT OF THE UNITED STATES: BURWELL VS. HOBBY LOBBY STORES, INC.” Web. 5 Apr. 2016.

“SUPREME COURT OF THE UNITED STATES: EQUAL EMPLOYMENT OPPORTUNITY COMMISION VS. ABERCROMBIE & FITCH STORES, INC.” Web. 5 Apr. 2016.

“Title VII of the Civil Rights Act of 1964.” N.p., n.d. Web. 05 Apr. 2016.

“A Win for Hobby Lobby and Religious Freedom.” The Hobby Lobby Case. N.p., n.d. Web. 05 Apr. 2016.

Content Based Sign Restrictions in Violation of the First Amendment

By Delia Franchi and Taylor Calta

Citizens of the United States have to abide by many laws. However, when it comes to expressing one’s viewpoints, there is a constitutional amendment that protects the people. The First Amendment to the United States Constitution provides that no law may restrict the freedom of speech. With the 2016 Presidential election fast-approaching there will be signs expressing the views on which candidate should win the election. Many towns and local municipalities regulate signage, which raises an important question. What restrictions on signs in the public space, if any, violate the First Amendment?

The United States Supreme Court case City of Ladue v. Gilleo, 512 U.S. 43 (1994), brought about a controversial twist to the public when it comes to signs expressing one’s views. In that case, Margaret P. Gilleo, a resident of Missouri, placed a sign in her front yard expressing her opposition to the war in the Persian Gulf.  While a sign expressing a political point of view may be considered the quintessential form of freedom of speech, it was removed because of a City of Ladue ordinance. After the disappearance of Gilleo’s two signs that she had placed on her lawn, she filed a complaint with police. The police informed her that her signs were prohibited due to a city ordinance. The U.S. Supreme Court ultimately decided the city’s ordinance was unconstitutional and in violation of Gilleo’s right to free of speech under the First Amendment.

Before the Supreme Court, the city argued that its total ban on residential signs except for those that fell within one of ten exemptions did not violate Gilleo’s First Amendment right to free speech. The Supreme Court upheld the lower courts holding that the City of Ladue’s ban on residential signs was in violation of Margaret Gilleo’s First Amendment right to free speech (Ladue).

The ruling supported the Supreme Court’s belief that a city cannot place limits on the free speech rights of residents unless there is a compelling reason. In this case, the city’s desire to decrease clutter in residential areas was an insufficient reason to justify a ban on signage, such as Gilleo’s signs expressing her opposition to the Persian Gulf War (Ladue). As a result, Gilleo’s placement of the signs on her lawn was protected.

The City of Ladue v. Gilleo case acknowledged the U.S. Supreme Court’s devotion to strict scrutiny of governmental attempts to restrict free speech rights. The case also established a guide for future cases where the balance between state regulation of signage and individual rights of expression may conflict (Ladue).

Recently, in Reed v. Town of Gilbert, 576 U.S. (2015), the United States Supreme Court considered whether content-based restrictions on signage violated the First Amendment. In 2005 the town of Gilbert, Arizona adopted a sign code that restricted the size, number, location, and duration of certain signs. Clyde Reed, the pastor of Good News Community Church,  placed 15 to 20 temporary signs in various locations in the town. The sign code compliance manager cited the church for exceeding time limits when displaying signs and for failing to include the date of the event on the sign (Reed et al. v. Town of Gilbert, Arizona).

With religious content seeming like the only reason for the restrictions, Reed and the church filed suit in the United States District Court for the District of Arizona in March, 2008. The church claimed that the sign code violated their freedom of speech under the First Amendment. The District Court granted summary judgment in favor of the town. The United States Court of Appeals for the Ninth Circuit affirmed that ruling, holding that the town ordinance was a content neutral restriction on speech and did not violate the First Amendment. The church then appealed to the Supreme Court of the United States (Reed v. Town of Gilbert, 707 F.3d 1057, 2013 U.S. App. LEXIS 2715 9th Cir. Ariz., 2013).

On June 18th, 2015 the Supreme Court reversed the Ninth Circuit and held that “a town ordinance that places different limits on political, ideological and directional signs violates the First Amendment” (Liptak). Justice Clarence Thomas held that Gilbert’s Sign Code restrictions did not survive strict scrutiny because the ordinance was not tailored to further a compelling government interest.

At the start of this article the question was posed whether restrictions on signs in the public violate the First Amendment. Any restrictions by municipalities must be content neutral, narrowly tailored, and be for a compelling government reason. It will be interesting to see how municipalities with signage restrictions meet that legal criteria.

Works Cited

“Ladue v. Gilleo – The Facts Of The Case, The Lower Courts Rule, The Supreme Court Rules.” – City, Speech, Free, and Residential. N.p., n.d. Web. 05 Apr. 2016.

Liptak, Adam. “Limits on Church Signs Ruled Unconstitutional.” The New York Times. The New York Times, 18 June 2015. Web. 05 Apr. 2016.

REED ET AL. v. TOWN OF GILBERT, ARIZONA, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Reed v. Town of Gilbert, 707 F.3d 1057, 2013 U.S. App. LEXIS 2715 (9th Cir. Ariz., 2013)

“City of Ladue v. Gilleo 512 U.S. 43 (1994).” Justica Law. N.P., 2015. Web. 07 Apr. 2016.

Revenge Porn and the First Amendment

By Megan Dorantes

With the digital age came the ability to easily share information with countless viewers, making the Internet a new public platform. As such, speech on the Internet usually falls under protection of the First Amendment, giving every American the right to post whatever they want, unless the material is obscene or a ‘true threat.’

Unfortunately, the Internet fosters a market for revenge pornography. Revenge pornography is when “someone posts nude or sexually explicit photos without the consent of the person depicted”(Desai). This frequently occurring cyber-crime disproportionately targets women, who make up 90 percent of the victims with their harasser being an ex-partner (Desai). Bringing a civil suit against revenge pornography is a struggle for most women, emotionally, financially, and physically.  And, as of 2015, only two states have enacted anti-revenge pornography laws, so there is little a civil suit could actually stand on (Desai). However, the creation and tailoring of laws specifically addressing revenge porn get a lot of pushback.

A major opponent of revenge porn laws is the American Civil Liberties Union (ACLU). Its stance is that First Amendment was created to “protect fair trade of ideas”(Desai), and that revenge porn laws would be prohibiting the sharing of these ideas. This played out in the 2015 case Patel v. Hussain (NO. 14-14-00459-CV), in which Nadia Hussain sued former boyfriend Akhil Patel for posting sexually explicit photos that Hussain had sent him during their relationship. Hussain claimed defamation from the release of her private photos, but the jury found them to be “substantially true,” classifying it as a valid idea to share on the public forum, protected by the First Amendment (Patel v. Hussain NO. 14-14-00459-CV).

Additionally, the First Amendment failed to protect Jennifer Vander Tuig in the 2013 case People v. Rosa (No. F063748). Vander Tuig had sent nude pictures of herself to her husband, Rosa. After the divorce, Rosa posted some of those photos online along with Vander Tuig’s personal contact information, resulting in threats, attacks, and solicitations. Because of the lack of specific laws, the court convicted Rosa on charges unrelated to the First Amendment: stalking, identity theft, and false impersonation (People v. Rosa No. F063748).

California and New Jersey are the only two states with revenge porn laws currently on the books. California’s bill puts emphasis on the point of consent, so victims like Hussain are better protected. In her case, Hussain sued Patel for posting her private, nude photos online, however, Patel claimed the copyright law protected him. The claim held in court because Patel took the pictures of Hussain, giving him ownership, and in turn, the First Amendment right to publish the photos at his will (Patel v. Hussain NO. 14-14-00459-CV). Despite Patel taking some of those videos and pictures unbeknownst by Hussain, copyright laws made her consent for publication unnecessary because she legally couldn’t claim ownership, and therefore control of imagery of her body. California is attempting to combat these rulings by focusing on consent instead of creators, giving the victim more legal ground (Desai).

California’s bill is a productive step in anti-revenge porn legislation, but it still fails to protect the 80 percent of cases that involve self-taken pictures. The law reads that it is a misdemeanor for “any person who photographs/records by any means the image of the intimate body part/parts of another identifiable person” (Desai). The law needs to be expanded to protect “selfies,” pictures the victims took themselves. Otherwise, those victims fail to be protected under the First Amendment. Without protection current law enforces victim-blaming and the idea that the victim should have known that public dissemination is a risk when taking such photos (Desai).

In a continually evolving tech world, digital and cyber crimes are becoming more prominent and should be further acknowledged and integrated into our laws. Tailored anti-revenge porn legislation needs to be provided under the protection of the First Amendment, especially when the crime affects half of the population. The government must deem revenge pornography the type of low-value speech that goes unprotected by law, or maybe even claim that the protection of women is a compelling state interest, allowing revenge porn to be regulated. Either way, the First Amendment must be expanded in order to fully protect victims in our current technological landscape.

Works Cited

Desai, Snehal. “Smile for the Camera: The Revenge Pornography Dilemma, California’s Approach, and Its Constitutionality.” Hastings Constitutional Law Quarterly (2015): n. pag. LexisNexis Academic [LexisNexis]. Web. 14 Apr. 2016.

Patel v Hussain. 14-14-00459. Court of Appeals of Texas, Fourteenth District, Houston. 2016. LexisNexis. Web. 28 March 2016.

People v. Rosa, No. F063748, 2013 WL 941728 (Cal. Ct. App. Mar. 12, 2013), review denied (June 19, 2013).