“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 

Those are the words of the First Amendment to the United States Constitution, an amendment which was adopted on December 15, 1791.  Despite it’s age, the First Amendment has proven to be one of the most, if not the most, argued amendments to be put before the American judiciary system.  Fundamentally, the First Amendment guarantees five very specific freedoms that are afforded to most law-abiding citizens: freedoms of religion, press and speech and the rights to assemble and to petition the Government as needed.  Of these inalienable rights, it is the freedom of speech that has been front and center, especially as of late.

On February 16, 2016, Federal magistrate Sheri Pym presented Apple with an order to assist the Federal Bureau of Investigation by disabling the ‘lock-out’ feature on the iPhone of San Bernadino gunman, Syed Rizwan Farook; the ‘lock-out’ feature acts as a safety redundancy, allowing only 10 incorrect password attempts before the phone is disabled.  This did not sit well with the tech giant who immediately began to strategize on how to, within the confines of the law, respect the privacy of those who use Apple products.

“”For many of us, the iPhone is an extension of ourselves,” Apple CEO, Tim Cook said.  “We need to decide as a nation how much power the government should have over our data and over our privacy. We did not expect to be in this position, at odds with our own government. But we have a responsibility to help you protect your data and protect your privacy. We owe it to our customers and we owe it to our country.”

On December 2, 2015, Farook, along with his wife Tashfeen Malik, opened fire on a holiday party at the San Bernardino County Department of Public Health, killing fourteen people and seriously injuring twenty-two others.  Considered a domestic terrorist attack, the United States Government surmised that certain information could be gleaned from Farook’s iPhone and felt Apple should assist in building a ‘backdoor’ in order to retrieve encrypted data from the assailant’s mobile device.  To Apple, this was tantamount to hacking the users of Apple devices and thus began Apple’s fight in the most recent of Frist Amendment battles.

Legitimate media professionals hold the First Amendment to a high regard and often brandish it as a shield to defend truth and admonish, in this case, the over-stepping of big government.  Apple admittedly assisted the United States Government from shorty after the attacks until mid-February, allowing FBI agents to be privy to information backed up to Apple’s iCloud service, but stopped short of “creating software that would effectively let officials try to crack the phone’s password”.  According to Apple, the code they are being asked to write violates the free-speech rights outlined by the Frist Amendment.  Apple’s argument: code is speech.

“The government wants to lay down a marker here that companies do have to provide assistance when they can,” Timothy Edgar, senior fellow at Brown University’s Watson Institute for International and Public Affairs, said.  “And Apple is saying, ‘We don’t want to have to hack our own customers.’  The outcome of the case is going to be hugely important for the balance between privacy and security.”

In a 1995 case brought up before the United States District Court for the Northern District of California, Bernstein v. United States, the notion of code being a form of speech was presented and the court ruled in favor of Daniel J. Bernstein, surmising that software source code fell under the protection of free speech.  Precedent alone would dictate that Apple is in the right to not fully partake in the actions requested of them by the United States government.  But the crux of this specific case revolves around the understanding that the San Bernardino shootings are considered terrorist attacks.  More so than precedent, an argument can be made for the U.S. government.  The grisly facts of the case have been made public by the media and those facts alone, the preservation of public safety and peace of mind, are a driving force behind their arguments: protect the American people even if that means violating the privacy of a criminal.  Apple argues that the code they are being asked to write falls under the protection of the First Amendment.

“The implications of the government’s demands are chilling.” If the government has its way, he said, it could “demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.”