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.

Does Freedom of Speech Apply to Muslim Students?

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By Wafai Dias

Over the past years the Palestinian-Israeli conflict has consistently been reported in the American media. In 2009, Israel invaded Gaza in “Operation Cast Lead,” leaving over 1,400 Palestinians dead (Btselem Dec. 27, 2009.) When students at the University of California Irvine campus found out that the Israeli Ambassador to the U.S., Michael Oren was going to give a speech at their University, they planned to protest his speech. On Feb. 8, 2010, 11 students stood up and one by one, at different times they confronted Oren with remarks such as “Michael Oren, propagating murder is not free speech,” and “It is a shame that this University has sponsored a mass murderer like yourself.” All 11 of them were arrested right after they protested and were released after three hours. Out of the 11 students, 10 were found guilty by the Orange County Superior Courthouse of violating:

  • Section 403 of the Penal Code, disrupting an assembly or meeting, a misdemeanor, without authority of law, did willfully and unlawfully disturb and break up a lawful assembly and meeting
  • Section 182(a) (1) of the Penal Code (Conspiracy to commit a crime), a misdemeanor, they unlawfully conspired together to commit the crime of disturbing an assembly and meeting, in violation of section 403 of the penal code.

Three of the students were from UC’s Riverside campus. Dan Stromer, a lead attorney of the defendants stated that this misdemeanor law in California criminalized forms of political speech that are protected in the U.S. constitution(SouthernCalifornia Public Radio, “Irvine 11attorneys file appeal,” Oct. 19, 2011.) In their appeal the defense attorneys’ stated that the students were convicted on the basis of an unconstitutionally vague state law prohibiting the willful disturbance of meetings (Daily Pilot, “Muslim students appeal conviction,” Jan. 23, 2013.) This case also started a debate of whether the students’ or Oren’s free speech rights were violated, and also if the district attorney’s office should have filed criminal charges in the first place. (DailyPilot, “Muslim Students Appeal Conviction,”Jan. 23, 2013.) One of the 10 students, Osama Shabaik, stated that the group wanted to host a University of Chicago style protest (Uprising Radio, Two Irvine 11 Students Share Their Story, Sept. 29, 2011.) Earlier in 2009 when the former Israeli Prime Minister Ehud Olmert spoke at the University of Chicago over 30 attendees including students and community residents disrupted his speech (ABC 7 News, “Groups Protest Former Israeli PM’s speech,” Oct. 16, 2009.) However, none of these students or community members were arrested or charged with misdemeanors. In the “Irvine 11” case one of the students was dropped from all charges due to the DA’s inability to bring charges against him. He agreed to complete 40 hours of community service and accepted a plea bargain (Orange County Register, “Case Dismissed Against Muslim Student,” Oct. 7, 2011.) Reem Salahi one of the defendant’s lawyers stated, “These types of protests happen all the time. It is actually very rare, completely uncommon for individuals to be prosecuted under Penal Code 403. That’s exactly what happened in this case”(University of Southern California, “Irvine 11 Attorney Reem Salahi Speaks On Implications Of The Case Oct. 5, 2011.) She also stated that she believed that it was more of a case against the content of what they said versus conduct. The Muslim Students Union was suspended after the protest. Since the Irvine 11 included several board members of the organization the prosecutors used a subpoena and gained access to the student’s emails in which they later used as evidence to prosecute the students for conspiracy to disrupt a meeting (Orange County District Attorney Press Release, Sep, 23, 2011.) Since all of the 10 students have clean records the judge sentenced them to three years of informal probation, 56 hours of community service and a $270 fine for each to pay. As of now all of them are no longer on probation and their defense attorney’s have appealed the guilty verdict.

*Photo Credit – Irvine 11 Facebook page  (A supporter of the Irvine 11 wore a “Silenced” shirt, during a rally in support of the Irvine 11.)

Free Speech? Twitter and Facebook Absent in Signing of Universal Free Speech Pact

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By Jord Strohl

A code of conduct to protect online free speech and privacy in restrictive countries was signed by major technology companies such as Google, Yahoo, and Microsoft. The involvement of these three power playing internet companies dates back to 2008, and they hoped that other companies would follow in their lead of a rallying moment for a core cause. Noticeably absent from the free speech pact are social media platforms such as Facebook and Twitter. All of the participating companies that signed the free speech pact are American companies; There is a void in the global initiative of advocating the protection of free speech. Although Facebook and Twitter are widely used by large audiences and activists in other countries in the Middle East and all over the world, they are not involved in this protection of free speech pact. Because free speech laws and the First Amendment only applies to the United States and are not global laws, there is a controversy on whether or not companies who have signed the free speech pact (Google, Yahoo, and Microsoft) have the adequate power and policies to even address the privacy and free speech issues. It is up to independent auditors to examine and interpret whether or not the companies adhere to government demands for user information and to decide whether they store users’ data in countries where free speech is protected. Susan Morgan, the executive director of the Global Network initiative, said that, “Recent events really show that the issues of freedom of expression and privacy are relevant to companies across the board in the technology sector, things really seem to be accelerating.” Facebook and Twitter have made a positive impact on freedom by highlighting the crucial role technology can play in the world’s most closed societies, which leaders of the initiative say makes their efforts even more important.

The code of conduct states that companies must try “to avoid or minimize the impact of government restrictions on freedom of expression” and protect user privacy when demands by government “compromise privacy in a manner inconsistent with internationally recognized laws and standards.” Although it sounds like companies must hold fast to these requirements, there is some wiggle room. Companies that abide by a country’s censorship requirements are able to remain in compliance with the code of conduct as long as they disclose it. The main idea of the free speech pact was to include as many internet companies as possible in order to create a greater influence and have more credibility. The companies who decided to refrain from signing the code of conduct have done so for reasons such as fearing the auditing process and not seeing any financial benefit from doing so.

A spokesman for Facebook, Andrew Noyes, did not comment directly on the topic of the free speech pact but says that, “As Facebook grows, we’ll continue to expand our outreach and participation, but it’s important to remember that our global operations are still small, with offices in only a handful of countries.” Social media sites such as Facebook and Twitter have had a huge affect on freedom of speech around the world, but the issues of privacy and free speech are still not black and white, especially when it comes to crossing country borders.

In order to be more influential, more companies will have to be added to the free speech pact. The initiative is modeled on previous voluntary efforts aimed at self-regulation and this one is no different as it came to life at a time when Internet companies were seeking to polish their image and potentially ward off legislation. The idea of the pact is to help companies do the right thing instead of having to play catch up after they mess up.

The Internet provides a forum for various outputs of information and communication services. In America, we take advantage of all the services that free speech can offer us. Despite what people assume, the internet is regulated and American citizens are not completely oblivious to the dangers that then internet creates. By signing the code of conduct, countries will be able to learn how to work collectively and to allow them to integrate and communicate freely with those outside of their countries. The key for this code of conduct to protect privacy and free speech is to get technological companies outside of the U.S. to sign it. If Facebook and Twitter were to sign the pact, the benefits of free speech would be easier to spread because of the audiences that the social networking sites attract.

– Jordan E. Strohl

Calvert, Mary F. 6 March 2011. The New York Times.

http://www.nytimes.com/2011/03/07/technology/07rights.html

The Citizen Lab. 7 March 2011.

Sites Like Twitter Absent From Free Speech Pact

Kopytoff, Verne G. 15 March 2011. KOM105.

http://kom105.blogspot.com/2011/03/sites-like-twitter-absent-from-free.html

Image Source: http://www.feross.org/wp-content/uploads/2009/08/internet-censorship.png

Student’s Free Speech- Jenny Hong

I found this article from the Los Angeles Times, which relates to the topic that we were discussing in class about student’s free speech.

This article, “For Students, a right to be mean online,” written by Victoria Kim, is about an eight grader girl who was bullied by Cohen, who posted a YouTube video of the girl calling her “spoiled,” a “brat”, and a “slut”. The eight grader went crying to her school counselor, Ms. Hart. Ms. Hart then reported this issue to the school district, which resulted in suspending Cohen. Cohen sued the school for violating her free speech. The courts sided with Cohen because this did not cause a disruption in school. Cohen made this video off campus and off- limits to the school administration’s regulation.

Do you agree with the court’s decision? Was Cohen’s First Amendment being violated? Or do you agree with the school’s decision for suspending her?

(I agree with the courts because this did not cause a disruption in the school community. Internet has become a way for all kind of people to express their feelings/ opinion. This case did not cause any danger/threat/violence/harm. Feelings were hurt, but it does not really matter in court, unless danger or physical harm or disruption were done due to this posting of the video.)

Here is link to the article:
http://articles.latimes.com/2009/dec/13/local/la-me-youtube-schools13-2009dec13

Or read it here:

For students, a right to be mean online?

With schools meting out discipline for what they see as cyber-bullying, some courts, parents and free speech advocates are pushing back.

December 13, 2009|By Victoria Kim

One morning in May 2008, an eighth-grader walked into Janice Hart’s office at a Beverly Hills school crying.

She was upset and humiliated and couldn’t possibly go to class, the girl told the counselor. The night before, a classmate had posted a video on YouTube with a group of other eighth-graders bad-mouthing her, calling her “spoiled,” a “brat” and a “slut.” Text and instant messages had been flying since. Half the class must have seen it by now, she told Hart.

Hart took the problem to the vice principal and principal, who took it to a district administrator, who asked the district’s lawyers what they could do about it. In the end, citing “cyber-bullying” concerns, school officials suspended the girl who posted the video for two days. That student took the case to federal court, saying her free speech rights had been violated.

Last month, a federal judge in Los Angeles sided with her, saying the school had gone too far. Amid rising concerns over cyber-bullying, and even calls for criminalization, some courts, parents and free-speech advocates are pushing back. Students, they say, have a 1st Amendment right to be nasty in cyberspace.

“To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul” of the law, U.S. District Judge Stephen V. Wilson wrote in a 60-page opinion.

“The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments,” he wrote.

Schools’ ability to limit student speech, from armbands protesting the Vietnam War to banners promoting marijuana use, is an age-old issue that has been repeatedly tried and tested in the courts. But with teens’ social lives moving increasingly to cyberspace, where what might have previously been private bickering is reproduced, publicized and documented for all to see, school officials find themselves on unfamiliar ground in dealing with e-mails, instant messages, profile pages, videos and the like that may result in hurt feelings or something more serious.

Free-speech advocates said the notoriety of recent cases, such as the Missouri girl who committed suicide after a mean-spirited MySpace message was sent, have led schools to overreact and excessively crack down on student expression when it comes to the Internet.

“It’s better to have a lawsuit and lose some money than have a situation where a student commits suicide,” said Eugene Volokh, a 1st Amendment expert and UCLA law professor who has criticized a bill in Congress that would make cyber-bullying punishable by up to two years in prison. “People don’t appreciate how much the 1st Amendment protects not only political and ideological speech, but also personal nastiness and chatter. . . . If all cruel teasing led to suicide, the human race would be extinct.”

The murkiness of this area of law and educational policy has resulted in legal challenges across the country over school officials’ restriction of student speech or discipline meted out in such cases.

Attorneys and experts said court decisions have been “all over the map,” offering little clarity to confused school administrators. The U.S. Supreme Court has yet to take up a case involving student speech online; the governing decision is from the 1969 Tinker vs. Des Moines School District case, which held that student speech could not be limited unless it caused substantial disruption on campus.

“We’re in a rapidly evolving area of law with relatively few guidelines and remarkably little that has been charted,” said Robert O’Neil, director of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression.

O’Neil said that when a true threat is made, and when speech is made using school computers, schools have clear authority to regulate students’ speech. But when something falls in the gray area between an expressed threat and mere teasing, and students are accessing the Internet outside the school’s walls, administrators are faced with a tricky calculus.

“Everybody is justifiably confused about what they can and cannot do,” said Witold Walczak, an attorney with the American Civil Liberties Union.

In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the website, the student referred to the principal as a “big steroid freak,” and a “big whore,” among other things, and stated that he was “too drunk to remember” the date of his birthday.

U.S. District Judge Terrence McVerry found that even though the profile was unquestionably “lewd, profane and sexually inappropriate,” the school did not have the right to restrict the student’s speech because school officials were not able to establish that the profile caused enough of a disruption on campus.

“The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web,” he wrote.

Walczak, the ACLU attorney who argued the case, said censoring is often the “easy way out” for schools that want to be able to say they did something about the situation rather than stand by and watch.

“The Internet doesn’t change what students say about other students or school officials, it just makes it more apparent to a larger number of people,” he said.

The school district has appealed to the 3rd Circuit Court of Appeals, where a decision is pending.

In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for alleged cyber-bullying. Katie Evans had created a Facebook page criticizing an English teacher as “the worst teacher I’ve ever met” and invited others to express their “feelings of hatred.”

Her attorney, Matthew Bavaro, said the reach of the Web was irrelevant to whether students are allowed to express themselves freely.

“The audience, whether it’s one person or 1 billion people, doesn’t change that Katie still had a 1st Amendment right,” Bavaro said.

In the Beverly Hills case, the student’s lawsuit said her “speech” was entirely off campus and off-limits to the school administrators’ regulation. The four-minute, 36-second video, in which a group of friends is chatting at a restaurant four blocks from campus, could not even be viewed at school because YouTube is blocked on the school’s computers, her attorney contended.

Judge Wilson ruled that school officials had the authority to investigate the matter because the student told several of her classmates to watch the video, and it was foreseeable the video, or talk of it, would quickly make its way to the campus of Beverly Vista School. The video was “designed in such a manner to reach many persons at once,” making it different from earlier cases involving school newspapers or a violent drawing, he found.

However, he ruled that the chatter in the video did not rise to a level that would cause enough disruption at the school to warrant the discipline.

“The fear that students would ‘gossip’ or ‘pass notes’ in class simply does not rise to the level of a substantial disruption,” he wrote.

The plaintiff’s attorney, Evan Cohen, who is also her father, said the case highlighted the school district’s failure to realize the limits of its authority.

“Yeah, sure, they can fall back on cyber-bullying, but when you actually ask them questions and dig down deep into their understanding, they think it’s OK for them to be a super-parent,” he said.

Cohen’s daughter, now a high school sophomore, is glad to put the case behind her and move on with her life, he said. She will be awarded nominal damages of $1 from the school, he said, and her two-day suspension will probably soon be removed from her academic record.

Attorney Gary Gibeaut, who represented the Beverly Hills Unified School District, declined to comment, saying the district had not decided whether to appeal the decision.