What If Apple and the FBI Went To SCOTUS?

The ability to connect with others around the world in seconds is exciting, but also comes with questions of privacy and counter-terrorism. After the San Bernardino shootings, much debate occurred surrounding privacy and smartphones. Is privacy for every citizen or just those that abide by the law? Can the government force a company to create a system to hack into terrorist phones?

Even though the Supreme Court of the United States (SCOTUS) never heard the Apple v. the United States Government (aka the FBI) case, the Newseum knew Americans were interested in both sides of the argument, and hosted a mock-trial to see how the case could have played out. The audience both online and in person voted on which portion of the case would be the most convincing argument for SCOTUS. The results were split.

Due to being a mock-trial, the case was knows as Pear v. US. DWT attorneys Bob Corn-Revere (First Amendment attorney) and Ronnie London (litigator and PrivSec editor) represented Pear. The USG was represented by Joseph DeMarco, who served from 1997 to 2007 as an assistant U.S. attorney for the Southern District of New York, and Jeffrey Barnum, a lawyer and legal scholar specializing in criminal law and First Amendment law. Each side presented their cases for 25 minutes and also gave a rebuttal. Read their briefs by clicking on the below links:

Brief for Pear, Inc.

Brief for United States

The Justices hearing the case include:

  • Floyd Abrams, renowned First Amendment lawyer and author; visiting lecturer at the Yale Law School (representing the chief justice)
  • Harvey Rishikof, chair of the American Bar Association Standing Committee on Law and National Security
  • Nadine Strossen, former president of the American Civil Liberties Union
  • Linda Greenhouse, longtime U.S. Supreme Court correspondent for The New York Times
  • Lee Levine, renowned media lawyer
  • Stewart Baker, former assistant secretary for policy at the U.S. Department of Homeland Security
  • Stephen Vladeck, professor of law at American University Washington College of Law
  • The Hon. Robert S. Lasnik, senior judge for the Western District of Washington at the U.S. District Court

According to the Newseum:

25 percent of those responded said

“the central issue likely will be whether the All Writs Act of 1789 can be invoked to empower the government to obtain a court order requiring a cell phone manufacturer to cooperate in unlocking and accessing information stored on a mobile device.”

Barnum reiterated that context is key in the First Amendment. To which DWT noted that just because speech is for sale doesn’t mean it should lose its constitutional protection.

The act, now rarely used, can be employed by federal judges to order individuals to perform certain acts. Critics say it grants courts too much authority, and in this case, attempts to “compel speech” — a constitutionally prohibited action.

The next most-likely issue was protection of the privacy of individual customers who have stored personal information on such phones. Privacy is part of the DNA of Pear. To force a company to create a new code that goes against its raison d’etre would be unconstitutional, which is why they were praised for their statement. Previous courts have recognized the ideological burden.

The third-ranking selection was “national security issues.” The government is not asking Pear to build a time machine, but rather have the ability to govern—not engineer—code. This is why the FBI gained access to one of the terrorist’s phones in the San Bernardino mass shootings by a “third-party” hacker.   

All in all, it should be remembered that creating a new function ultimately means creating a new literary work—which should be protected.

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