Encryption: Ensuring the Right to Privacy in the Information Age?

On December 2^nd, 2015, a tragic mass shooting occurred in San Bernardino, California. The attack resulted in 14 deaths and severe injuries to 22 others. The attackers, a married couple, targeted the husband’s workplace – the Department of Public Health. After the shooting the couple fled the scene of the crime, but the police eventually caught up with them. The couple was subsequently killed in a shootout.

As part of the FBI investigation, an Apple iPhone became the center of a security showdown between the Silicon Valley giant and the federal government. The Apple iPhone 5C, a work-issued phone given to the male perpetrator—Syed Farook —was equipped with operating software that protected the data on the phone through the use of 256-bit AES encryption. Because the phone was secured with this encryption and locked with a passcode to which only Farook was privy, the FBI approached Apple to develop software to crack open the iPhone. Apple declined.

Encryption scrambles information to prevent unauthorized individuals from viewing sensitive information. Encryption engineers at Apple developed iPhones with this type of protection built in.  It argued against the government’s effort to compel it to write a decrypting program to create a backdoor—a method of bypassing normal authentication in a product—as contrary to the company’s policies and values. The FBI sought a federal court order to force Apple to create this backdoor. Apple argued that doing so would create risk that hackers might somehow gain access to the software and use it to decrypt other iPhones, thereby, potentially putting all Apple’s customers’ privacy in jeopardy.

Later, the FBI dropped its request for Apple’s assistance in decrypting Farook’s iPhone, claiming it determined a way to crack the encryption technology without Apple’s help.

But this dispute raises the interesting question of whether computer software – particularly the right not to develop it – is included under the protections afforded by the First Amendment of the United States Constitution.

The Supreme Court has found that computer code is speech that is protected under the First Amendment. Computer code, while not verbal communication, is a written form of communication that can convey ideas and social messages. Freedom of expression not only includes the right to freely express one’s ideas, but also the freedom to withhold communication of those ideas. In essence, what the government was doing in the Apple case was attempting to compel speech where it was not freely decided upon, which is generally prohibited by the First Amendment.

In the Apple case involving the San Bernardino shooter’s iPhone, the court was not ultimately asked to rule.  But, as tech companies continue to implement more and more advanced security features and superior encryption in response to market pressure to better protect against security threats, the tension between Silicon Valley and the government that was highlighted in the Apple case is likely to surface again.