The FBI vs Apple and the First Amendment

The FBI has requested that Apple help them hack the iPhone of the San Bernardino shooter, with much debate over the request by supporters on both sides. The debate has centered around those stating Apple should assist the FBI as a matter of national security and those supporting Apple, who say that such a move would violate the right to privacy of millions of iPhone users around the world. However, the debate has largely ignored the First Amendment issue which this situation raises.

It has long since been established that the First Amendment protects the right to free speech of American citizens. However, the Supreme Court has also repeatedly affirmed that the First Amendment protects individuals from being coerced into expressing a view which they do not agree with. The government cannot, for example, force a person to verbally express a political opinion which the person disagrees with, nor can they compel a person to sign a petition or to write an essay articulating a point they disagree with.

Furthermore, the First Amendment is not restricted to only protecting spoken language. The Supreme Court, in Brown v. Entertainment Merchants Association, held that video games — which are created by computer codes — are protected by the First Amendment.

Computer code is a form of speech; it could be argued that it should be protected by the First Amendment. Writing code for the FBI would make Apple agents of the federal government, so the code would be tantamount to expressing support for the government and its actions.

This is not simply a debate about national security versus privacy concerns. It is far more important than that; it is about freedom of expression and the First Amendment. Apple should not be forced to assist the FBI by writing a special programme for them, as such a move would violate Apple’s First Amendment rights.