Apple may have won widespread public sympathy in its showdown with the FBI, but some of its less publicized decisions in the case should raise alarms. As part of its legal campaign to resist an order to break into a terrorist’s iPhone, the company is quietly pushing a pro-corporate interpretation of the First Amendment that could do real damage to the government’s ability to regulate commerce and protect consumers.
A bit of background: After the terrorist massacre in San Bernardino last year, federal investigators were unable to access an iPhone that belonged to Syed Farook, one of the attackers. To overcome the phone’s security features, authorities ordered Apple to write new software that would allow the FBI to break into the phone. Apple says creating the code the FBI demands would weaken privacy protections for all iPhone users and has engaged in a war of words with the Justice Department over the government’s demand. The legal battle is now on hold as the FBI explores a possible workaround that might allow investigators to enter the phone without Apple’s help. But if that method fails, the case could soon heat up again.
Much of the company’s case rests on reasonable objections to the FBI’s interpretation of a 1789 law, the All Writs Act, which the government claims gives investigators the power to demand Apple help them. But Apple goes a step further, adding a misguided constitutional contention. That part of the company’s case goes like this: Complying with the FBI order would require it to write code. Computer code, courts have ruled in other cases, is a form of speech. Thus, the order amounts to a First Amendment violation.“The government seeks to compel Apple’s speech” in the form of code it objects to writing, the company said in a court filing.
But while Apple has a lot of good reasons to fight the FBI in the San Bernardino case, the First Amendment is not one of them.
As several legal analysts have pointed out, the implications of the company’s First Amendment claims are profound. As a practical matter, nearly all corporate compliance in 2016 involves writing and using software. Not all software is as sophisticated as the code Apple would have to write in the San Bernardino case; just setting up formulas in a Microsoft Excel spreadsheet counts as coding too. So if the government makes a company add up lines on a spreadsheet to comply with financial transparency requirements it dislikes, does Apple believe that would be unconstitutional compelled speech too?
Virtually any regulation of any company would seem to be in peril if Apple defeats the government on the basis of its First Amendment claim. And if those floodgates open, not all the corporations that benefit will have Apple’s benign goals. What happens when, say, Exxon decides it doesn’t want to write the computer code needed to comply with some future emissions-tracking law?
Unfortunately, that’s not such a far-fetched outcome. Ron Fein, the Newton-based legal director for Free Speech for People, points out that the Clean Water Act requires polluters to “install, use, and maintain” monitoring equipment and use the data to “make reports” about what they find. That process would almost inevitably require those companies to use software to implement an environmental policy with which they might disagree, and then to publish reports whose underlying premises they may reject. If courts let them characterize the software and reports as speech entitled to constitutional protection, does that mean they get to ignore the law?
The privacy advocates who have rushed to Apple’s side in the San Bernardino case ought to be careful about what they’re endorsing. Apple has some good reasons to resist the government’s demands. But what it does not have — and what it would a bad precedent to recognize — is any corporate First Amendment claim. Respect for real free speech demands that its defenders call out those who would distort the First Amendment into a shield against reasonable commercial regulation.