Over the past several decades, technological advancements led several courts to hold that computer code is protected as speech under the First Amendment of the Constitution. However, after fourteen people were killed in the 2015 San Bernardino massacre the U.S. Government sought to ignore those findings when it ordered Apple, Inc. to write a computer code to bypass the encryption software on the shooter’s cell phone. To access this particular phone Apple would need to write a code that could potentially compromise its customers’ data and personal information. Apple vehemently opposed the Government’s order and claimed that compelling it to violate its company philosophy infringed on its First Amendment rights against compelled speech. The American public became very divided over the legal implications of technology, privacy, and encryption, which warranted a discussion and analysis of the application of the First Amendment in the technology era.
After discussing the history of the Free Speech Clause of the First Amendment, this Note explores the law surrounding computer code as speech, compelled speech, and compelled affirmations. This Note then analyzes the Constitutionality of the U.S. Government ordering Apple to access an iPhone seized following the commission of a terrorist attack in San Bernardino, California. After considering Apple’s justifications for resisting the Government’s order, this Note argues that the First Amendment protects the company’s refusal to write encryption software needed to access the seized device. This Note then highlights the need for a solution created through legislation, rather than a piecemeal body of law decided by the judiciary to provide more definite guidelines.
Being Forced to Code in the Technology Era as a Violation of the First Amendment Protection Against Compelled Speech,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol67/iss1/11