Where are privacy, national security limits in new Digital Age?

February 25, 2016

By Gene Policinski
Inside the First Amendment

The legal tug of war between Apple and the Federal Bureau of Investigation over access to a single iPhone is shaping up to be one of the first great national disputes of the Digital Age.

Some would say the core freedoms of speech, press and association, and the latest turn in the re-balancing of privacy against the needs of national security, are at stake at the dawn of the Digital Age. Others say no such lofty issues arise, and that this is a simple issue of a corporate citizen having to comply, like anyone else with a legal court order, in the interest of public safety — even if it's counter to its business interests.

Even Microsoft founder Bill Gates finds the matter no easy call: He said a few days ago that the dispute may just involve "a particular case" in which Apple can only delay the inevitable — giving the government what it wants.

But Gates quickly noted in later interviews that while "I do believe there are sets of safeguards where the government shouldn't have to be completely blind" in national security matters, he also recognizes that "... clearly the government has taken information historically and used it in ways we didn't expect, going all the way back to, say, the FBI under J. Edgar Hoover."

A judge has ordered Apple to assist in overriding an "auto-delete" feature built into an iPhone used by one of the San Bernardino terror killers. After 10 failed tries at "guessing" the phone's password, the feature will automatically delete data stored on the phone.

The FBI says that once the locking feature is disabled, it wants to force access to the phone's data history, because that may have clues to a future terror attack, and could help determine if others were involved in the December mass shooting.

Apple chief Tim Cook says the company will fight the order because "the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone," to write new computer code to override the auto-erase feature.

News reports at week's end raise the idea that Apple may employ arguments around a First Amendment doctrine involving "compelled speech," while making a direct challenge to the legality of the court order issued under the 1789 "All Writs" law.

In 1999, the Ninth Circuit U.S. Court of Appeals ruled that computer code is a form of protected free speech, though that opinion later was withdrawn for unrelated reasons. Apple could say that forcing the company to write new code to unlock the phone is "compelled speech" — generally not allowed under the First Amendment, since the right to speak freely also necessarily includes the right not to speak, so declared by the U.S. Supreme Court in 1943.

In that opinion, the court said school children could not be forced to recite the Pledge of Allegiance. The landmark ruling said that "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein." The doctrine was extended in 1977 when the court held New Hampshire could not force citizens to use a license plate with the state motto "Live Free or Die."

But those cases involved individual speech. Commercial speech generally has weaker First Amendment protection than, say, political speech — and that area involving compelled commercial speech remains less well-defined in law, ever as courts have ruled on cases ranging from speech by attorneys to drug warnings to efforts to efforts combat sex trafficking and prostitution.

One example: The government gained the authority in 2009 to mandate printed health warnings on cigarette packaging. But even then, a limit was set: "purely factual and not controversial" — and graphic drawings later were rejected by a court. In a case involving labeling of packaged meat to indicate "country of origin," a federal court supported the required wording because it advanced a "compelling government interest" — in that matter, providing consumers with needed health and other information.

The FBI already contends the San Bernardino phone information involves a compelling interest, the fight against terrorism. But Apple supporters say that the government's interest in this specific case is less than the "compelling" standard, and does not outweigh the standing and value of Apple's promise to consumers of privacy for their data.

In even broader terms, "Apple v. FBI" has echoes of — and implications for — other legal challenges and social standards over privacy, free press and even association rights.

The proper extent of government access and control over vast amounts of data now readily accessible in the digital age, exposed by "leakers" such as former NSA contractor Edward Snowden and others, still is being argued. And with ready access to phone GPS tracking information, authorities here — or repressive regimes abroad — seeking to track down dissidents and reporters' sources can gather unprecedented amounts of specific information on where someone is at all times and with whom they are meeting.

Our laws on wiretapping and search and seizure of private information grew up in an age of locked doors, file cabinets and phones with wires in walls — and have taken nearly a century to evolve.

Apple v. FBI is only the first step in figuring out where new boundaries that protect our core freedoms will exist in a wireless, digital age.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org. Follow him on Twitter: @genefac.

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