Perhaps these laws we are trying to unravel do not exist at all. There is a small party who are actually of this opinion and who try to show that, if any law exists, it can only be this: The Law is whatever the nobles do. —Franz Kafka, “The Problem of Our Laws”
On October 30, Apple joined thirty-six other major corporations in filing an amici curiae brief supporting Colorado Civil Rights Division, et al., against Jack Phillips, the owner of Masterpiece Cakeshop, in an important case to be heard before the Supreme Court this term. The case, which will decide whether certain forms of expression are exempt from anti-discrimination laws, hinges on the definition of “expression.” Apple, in adding its name to the brief, rejects Phillips’s definition as over-broad and “amorphous.” From the brief:
To apply [Phillips’s] constitutional interpretation, one would need to determine whether certain conduct is as expressive as baking a cake from scratch—regardless of the appearance of the cake. Adopting such a broad definition of expression or expressive conduct could result in a multitude of business activities potentially being expressive. For example, designing a website, editing photos, interior decorating, landscaping, hair styling, practicing medicine, or authoring an appellate brief all could qualify as expressive.
Even if one believes that Apple’s advocacy for expansive LGBT rights is laudable, there are consequences to defining expression so narrowly, consequences that may prove inimical to Apple’s corporate interests.
Early in 2016, Apple refused to comply with the FBI’s demand that the company create software to neutralize security features on the iPhone of Syed Rizwan Farook, one of the San Bernardino shooters. In a motion to vacate, Apple argued that the DOJ’s order “amounts to compelled speech and viewpoint discrimination in violation of the First Amendment.”
In defining software as “speech,” Apple relied on the 9th Circuit Court of Appeal’s ruling in Bernstein v. United States Department of State (1999), which held that source code qualifies as protected expression under the First Amendment. Daniel Bernstein, a mathematics professor at the University of Illinois at Chicago, had sought permission from the State Department to share his encryption software, Snuffle, with the international academic community. Because encryption software was classified as “munitions” under the Arms Export Control Act and the International Traffic in Arms Regulations (ITAR), the government required Bernstein to obtain an export license for each person he intended to share his source code with. Bernstein then sued the government on the grounds that these restrictions were unconstitutional.
The 9th Circuit’s Judge Marilyn Hall Patel ruled in Bernstein’s favor in 1996, and again in 1997, affirming that source code was protected speech. The government appealed these decisions, and the case was decided in 1999 by a three-judge panel, which affirmed Patel’s ruling. A particular passage from the ruling is worth quoting, to emphasize the broad view of speech required to include source code:
Whether source code and object code are functional is immaterial to the analysis at this stage. Contrary to defendants’ suggestion, the functionality of a language does not make it any less like speech . . . . Thus, even if Snuffle source code, which is easily compiled into object code for the computer to read and easily used for encryption, is essentially functional, that does not remove it from the realm of speech. Instructions, do-it-yourself manuals, recipes, even technical information about hydrogen bomb construction . . . are often purely functional; they are also speech. Music, for example, is speech protected under the First Amendment . . . . The music inscribed in code on the roll of a player piano is no less protected for being wholly functional. Like source code converted to object code, it “communicates” to and directs the instrument itself, rather than the musician, to produce the music. That does not mean it is not speech. Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it.
Undaunted, the State Department pressed for a review of the decision by a full panel of eleven judges. The court granted the review, but the government loosened its encryption regulations before the case could be heard. Although Bernstein continued to press for a definitive ruling, the court eventually dismissed the case when the government declared that it would not enforce the problematic restrictions.
This leaves source code in a sort of legal limbo: Federal courts have affirmed its status as protected speech, but the government may still push the issue to the Supreme Court. And this is why Apple’s advocacy on behalf of Colorado Civil Rights Division could come back to haunt it.
Jack Philips’s case depends on the Supreme Court’s upholding its long tradition of defining speech broadly. The respondents, Colorado Civil Rights Division, are thus pushing for the court to break with its jurisprudence and apply standards narrow enough to exclude the making of designer cakes. As Phillips’s attorneys complain in their per cert reply, “[the r]espondents amplify the Colorado Court of Appeals’ errors by adopting the extreme position that Phillips’ artistic expression must communicate a particularized message to merit free speech protection.”
Such a narrow definition of speech would even contradict fairly recent precedent. In 1995’s Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the court ruled unanimously that a private organization could not be compelled under public accommodation law to include in its parade a group whose message it opposed. In his opinion, Justice Souter writes that “a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message’ . . . would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schönberg, or Jabberwocky verse of Lewis Carroll.”
Four sitting justices concurred with the ruling in Hurley—Clarence Thomas, Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer. It is certainly possible that the court will break with its precedent, but, given its current makeup, that would require Ginsburg, Kennedy, and Breyer to repudiate their earlier ruling and limit protected speech to expressions containing a “particularized message.”
Such an outcome would satisfy the social justice concerns of Apple and other corporate giants, but it wouldn’t necessarily be good for business. A definition of speech narrow enough to exclude decorative arts will almost certainly exclude source code as well. The FBI could easily use such a precedent in court to compel Apple to write code capable of breaching their iPhone users’ privacy.
And this could happen relatively soon. Last week the New York Times reported that the FBI has been unable to gain access to the iPhone of Devin P. Kelley, the shooter who recently murdered 26 churchgoers in Sutherland Springs, Texas. Even if the FBI does not pursue Apple’s involvement, the situation demonstrates that this problem is not going away any time soon.
Perhaps I’m naive to expect Apple to pursue its interests consistently. And perhaps I’m even more naive to expect consistency from our Supreme Court Justices.
I have always pitied lawyers. Their profession looks to me much the way I imagine engineering would in a world where the laws of physics changed with the weather. But I’m an outsider, an occasional admirer of the hermeneutical contortionist acts played out in the theaters of our legal system. No doubt there are logics at work in our constitutional jurisprudence about which I know nothing. If my alarm over Apple’s behavior is unwarranted, I welcome correction.
Justin Lee teaches undergraduate writing at the University of California, Irvine.
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