Here’s the latest from CLR:
By: Shaun David Malone
In the wake of recent events surrounding the shooting of Keith L. Scott in Charlotte, NC, much of the public’s attention has been on the release or access to police camera recordings, whether it be body camera or dash-cam video. On July 11, 2016, prior to Scott’s death, the Governor of North Carolina approved HB972, which became effective on October 1, 2016 as North Carolina General Statute § 132-1.4A. The Statute states that recordings by law enforcement personnel are not public record. Further, the Statute prohibits the release of the recording without a court order. The question becomes why the North Carolina General Assembly would pass a law to require a court order to release police recordings. Other portions of the Statute suggest that the General Assembly was attempting to limit access to police recordings to persons having a specific interest such as those who have legal standing for a claim, like police misconduct, or defense against a criminal charge. For clarity, access to recordings for defense in a criminal matter will be discussed first.
In Brady v. Maryland, the Supreme Court held that it is a violation of due process for the prosecution to suppress evidence favorable to the defendant upon request, where the evidence is material to the defendant’s guilt or punishment. Under § 132-1.4A(f), the new Statute prohibits the release of police recordings without a court order, but also sets out factors to consider when the court determines whether to order the recording’s release. The Statute provides that one of the factors is whether “the person requesting the release is seeking to obtain evidence to determine legal issues in a current or potential court proceeding.” While the Statute affords some discretion to the courts, it is still superseded by the protections afforded in Brady. Therefore, criminal defendants retain the right to access the recording, when that recording contains evidence which is favorable to the defendant and is material to the defendant’s guilt or punishment.
Now for the main point of inquiry, access to the recording in pursuit of claims for police misconduct. As much as §132-1.4A considers obtaining evidence for current or potential legal matters, it also applies to the pursuit of a claim against law enforcement. However, there is one major difference. Since Brady is only applicable in criminal matters, a claimant in North Carolina cannot rely on Brady to obtain access to a recording when pursuing a civil claim against law enforcement officers for misconduct. Therefore, in a civil matter, North Carolina courts have greater discretion in relying on the other factors enumerated in §132-1.4A(g).
By giving a court discretion as to whether to release the recordings under the factors identified under §132-1.4A(g), the General Assembly created the means by which to balance the policy concerns discussed in the legislative history. The concern identified in the legislative history is the balancing of public confidence and trust in law enforcement with transparency, against the rights to privacy of law enforcement and private citizens who may appear in the recordings. The General Assembly furthered its goal in balancing the competing interests by limiting access to the recordings to persons whose image or voice is in the recording and his or her personal representatives as noted in § 132-1.4A(c).
It is the General Assembly’s restriction for recording access, a person whose image or voice appears in the recordings and his or her personal representative, which constitutes a limitation to those with standing. To establish standing, a claimant must demonstrate an actual or imminent invasion of a legally protected interest, which is fairly traceable to the defendant’s actions, and a favorable decision will likely redress the injury. North Carolina courts have also referred to standing as the issue of whether a party has a sufficient stake in the adjudication of a matter. It is important to note that § 132-1.4A(c) does not guarantee standing for a particular claim. However, without appearing in the recording or having a special relationship to a person in the recording, it would be difficult for a claimant to have a sufficient stake in the adjudication of a claim involving the events in a recording.
Therefore, by limiting access to police recordings, it appears that the North Carolina General Assembly is balancing transparency with the privacy rights of persons appearing in the recording. Any access to police recordings is statutorily limited to persons most likely to have a stake in the outcome of a claim arising out of the recording (i.e., persons with standing).
N.C. Gen. Stat. Ann. § 132-1.4A (West 2016)
Brady v. Maryland, 373 U.S. 83, 85-89 (1963)
H.B. 972, 1st. ed., Gen. Assemb., Sess. 2015 (N.C. 2016)
Neuse River Foundation, Inc. v. Smithfield Foods, Inc., 754 S.E.2d 48, 52 (N.C. Ct. App. 2006)
Lee Ray Bergman Real Estate Rentals v. North Carolina Fair Housing Center, 568 S.E.2d 883, 886 (N.C. Ct. App. 2002)
By: Matthew Freeze
Pokémon GO is a game for mobile devices developed by Niantic, Inc. and released across most of the globe in early July, 2016. It is a location-based, augmented-reality video game, which means that it uses the various sensors in a smartphone—specifically the camera and GPS—to display virtual creatures on the phone’s screen.[i] While the game largely centers around this virtual component of catching and training these virtual creatures, there is a real-world component. The game centers on physical activity and requires players to go out into the real world and find physical locations where the virtual creatures are hiding, waiting to be caught by the player. As a result, physical trespass is a latent concern with this and other similar augmented-reality games.[ii]
For perspective, the game was downloaded over 130 million times in the first month after release, which means there are an immense number of people playing this game across the world.[iii] As noted above, the game requires players to go out to real-world locations, which have been pre-populated with these virtual creatures. Typically, the virtual locations coincide with landmarks that are listed in Google Maps.[iv] Random creature sightings, however, can occur in any location that the game’s software identifies. It is these latter locations combined with the vast number of people using the game that present such a thorny issue since so many people are out physically moving about on public and private property.
The question becomes: who will be liable for such trespass?
The clearest answer is that the individuals who commit the actual, physical trespass by entering onto private property will be liable. But what of the landowners themselves? A question remains as to whether they will be liable in those states that recognize the principle of attractive nuisance. This doctrine holds that landowners may be liable for harm suffered by those who are lured onto the property, but who do not have the capacity to appreciate the latent dangers on that property.[v] This largely applies to young children. Technically, a child must be 13 years old to accept the terms and services agreement that accompanies the game, but this simple click does not stop many children under that age from signing up and hitting the streets.[vi] The question may become what role the landowner plays in mitigating the presence of these virtual creatures on their property that can be seen as an enticement to younger children who will seek them out.
The largest and most potentially lucrative question for a claimant will be whether Niantic, the game’s developer, will retain any liability for placing the creatures on private property, albeit in a virtual manner, and thereby generating a nuisance. Niantic has already had its first brush with the courts on this. Jeffrey Marder, a New Jersey resident, filed a class action suit in U.S. District Court for the Northern District of California (where Niantic is headquartered) in late August 2016. Mr. Marder alleged that Niantic generated a nuisance on his New Jersey property by placing virtual creatures at GPS locations within his property lines and enticing game users to come access his property to catch the virtual creatures.[vii] Niantic will likely counter by stating that it is insulated from liability since the Terms of Service agreement and several popups within the game alert the player to not trespass during the use of the game.[viii] Of course, the question of the validity of these “clickwrap” agreements will come into play in any of Niantic’s attempts to shield itself from liability.[ix]
Since Pokémon GO and other augmented-reality games are in their infancy, none of these issues have been fully fleshed out. Given the relative success of Pokémon GO, however, it does not seem as if this style of game is soon to disappear; the issues surrounding these “generated” instances of trespass and nuisance will continue to plague their relative successes.
[i] The Legal Issues Surrounding Pokémon Go, Lawyer 2 Lawyer (Aug. 12, 2016), http://www.lawsitesblog.com/2016/08/podcast-legal-issues-surrounding-pokemon-go.html.
[ii] Denise Johnson, Poking Around Legal Issues Surrounding Pokémon Go, Claims Journal (Jul. 18, 2016), http://www.claimsjournal.com/news/national/2016/07/18/272200.htm.
[iii] Rachel Swatman, Pokémon Go catches five new world records, Guinness World Records (Aug. 10, 2016), http://www.guinnessworldrecords.com/news/2016/8/pokemon-go-catches-five-world-records-439327.
[iv] Sam Prell, Why your church, art, and water towers are Pokemon Go gyms and Pokestops, Games Radar (Jul. 11, 2016), http://www.gamesradar.com/why-your-local-church-and-water-towers-are-pokemon-go-gyms-and-pokestops.
[v] Attractive-Nuisance Doctrine, Black’s Law Dictionary (10th ed. 2014).
[vi] Niantic Labs, Pokémon GO Terms of Service, https://www.nianticlabs.com/terms/pokemongo/en (last visited Sept. 28, 2016).
[vii] Complaint at 1-14, Marder v. Niantic, Inc., No. 4:16-cv-04300 (N.D. Cal. Jul. 29, 2016), http://www.plainsite.org/dockets/3087pyqwy/california-northern-district-court/marderv-niantic-inc–et-al.
[viii] Niantic Labs, supra n6.
[ix] Alison S. Brehm & Cathy D. Lee, “Click Here to Accept the Terms of Service”, 31-WTR Comm. Law. 1, http://www.americanbar.org/publications/communications_lawyer/2015/january/click_here.html.
By: Kiersten Call
The principle of net neutrality embraces the concept that everyone should have access to a free and open internet. Specifically, net neutrality emphasizes that individuals should be able to access all internet content equally and without the threat of Internet service providers discriminating against certain websites or services. This issue is crucial because without net neutrality, there is potential for broadband providers, such as AT&T, Verizon, and Comcast, to prioritize certain Internet traffic. This would impose more fees and poor service for certain online content such as Netflix. The potential issues include higher costs being pushed out to the average internet consumer and less business innovation due to fees making it more expensive to launch new services. The Federal Communications Commission has been a major advocate of upholding net neutrality principles and avoiding these potential issues. However, they have been met with much opposition from broadband providers.
The issue of net neutrality is not a new one to be argued in front of a court. In fact, on June 14, 2016, the United States Court of Appeals for the District of Columbia Circuit upheld the FCC’s Open Internet Rules. However, this was the first real victory for net neutrality among a history of two previous failures. The Federal Communications Commission first attempted to compel broadband providers to adhere to certain open internet practices in Comcast Corp. v. FCC. However, the court decided that there was no authority that authorized these attempted regulations. After this failure, the Federal Communications Commission introduced net neutrality protections in May 2010, which stated that internet service providers could not impose limits on users or block websites. These protections, which were finalized in December 2010, were the first-ever rules adopted to regulate Internet access and promote net neutrality. Weeks after the adoption of these regulations, Verizon Communications filed a federal lawsuit which would ultimately overturn the 2010 regulations. In Verizon v. FCC, the United States Court of Appeals for the District of Columbia Circuit decided that while section 706 of the Telecommunications Act of 1996 did allow for the Commission to enact rules for net neutrality, the classification of broadband services as an information service did not allow for regulations in this instance. In response, the Federal Communications Commission adopted the FCC’s Open Internet rules on February 26, 2015.
These Open Internet rules had three main components. First, they reclassified broadband services as a telecommunications service, subject to carrier regulations under Title II of the Communications Act. Secondly, these rules forbid any regulations that were not necessary to protect consumers. Finally, bright line rules were established banning blocking, throttling, and paid prioritization. In a 2-to-1 decision from a three-judge panel at the United States Court of Appeals for the District of Columbia Circuit, these rules were upheld. While a potential appeal may still be granted, as of now, this decision limits the ability of broadband providers to become gatekeepers of internet users and ensures access to an open internet.
United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 825 F.3d 674, 696 (D.C. Cir. 2016)
By Jennifer Stevens
House Bill 2 (HB2) has been a topic of controversy for weeks in North Carolina. HB2 has been criticized as the “most anti-LGBT bill in the country.” So, what is the big deal about the bill?
First, the bill outraged citizens because it mandated that people use public bathrooms based on the biological sex stated on their birth certificates. Thus, transgender people are now being forced to use restrooms corresponding with the gender they were born, not the gender to which they identify. The only solution for a transgender person is to have the sex listed on their birth certificate to be changed to which they wish to identify. Governor McCory of North Carolina stands behind this bill because he believes that it provides North Carolina citizens new protections. Many people are still asking what “new protections” this bill has brought forward.
Many people are only aware of this LGBT provision of the bill, but there is a much more troubling provision that needs to be brought to everyone’s attention. There is a single sentence in the bill that completely strips the rights of North Carolina workers to pursue a remedy in state court if the worker believed they were fired based on race, gender, religion, or age. The exact language is this, “This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” As such, any of these claims CANNOT be taken to state court, putting a huge burden on any North Carolina worker. Under federal law, a worker bringing a claim has only 180 days to file a discrimination claim, whereas in state courts, there is a three- year window to file a claim. Also, federal claims are harder to bring and often bring less reward than that of state courts.
This single sentence has taken away a thirty-year practice given by the North Carolina Equal Employment Practices Act. This act applies to businesses with fifteen or more employees and stated that it is against the state’s public policy to discriminate based on “race, religion, color, national origin, age, sex, or handicap.” Traditionally, people who successfully proved discrimination could recover damages under common law.
Whether you agree with the LGBT provision of the bill, it is hard to fathom the rationale behind the discrimination provision. As people are becoming aware of the discrimination provision, protests are slowly coming to light. Recently, Bruce Springsteen cancelled his show in North Carolina because of HB2’s discriminatory provision. Clearly, this is not who North Carolina is, and people need to fight back for the rights of our citizens.
Congress can require pimps to pay restitution to overseas sex-trafficking victims, 11th Circuit says
By William G. Hodge
The Atlanta-based 11th U.S. Circuit Court of Appeals has recently ruled that Congress has the power to require international sex traffickers to pay restitution to their victims for sex-trafficking that occurs overseas.
On March 24th, the federal appeals court convicted pimp Damion St. Patrick Baston when he forced a woman to perform prostitution work for him in Australia, the Daily Business Review reported. Baston was required to pay the woman $400,000 for her work in Australia and $78,000 for her work in the United States.
Baston initially entered the United States illegally with a stolen identity and traveled the world forcing women to prostitute for him. Using advice that he obtained from a book called Pimpology, Baston recruited women that had been sexually abused as children and took any money they earned. Baston also subjected his victims to violence by choking, slapping, and threatening to kill them if they defied him.
During his case, Baston argued that requiring him to pay restitution to his victims exceeds the power granted to Congress through the Foreign Commerce Clause and Due Process Clause. The 11th Circuit Court disagreed. Baston also challenged the sufficiency of evidence regarding whether his conduct was “in or affecting” interstate commerce. However, Baston failed to raise the challenge at the district court level. The court noted that even if the challenge had been made at the district court level and Baston trafficked his victims only in Florida, Baston’s use of cell phones, the Internet, hotels, and buses to facilitate his trafficking was “in commerce.”
Essentially, the court ruled that Congress had a “rational basis” that sex-trafficking by force overseas is part of an economic class of activities that has a substantial effect on commerce between the U.S. and other countries, which expands Congress’ power under the Foreign Commerce Clause.
By: Audrey Henderson
Judge Merrick Garland, age 63, was born in Chicago, Illinois, to parents Cyril and Shirley Garland. Before graduating from high school as valedictorian, he became a member of the Presidential Scholars Program and a National Merit Scholar. After high school, Garland attended Harvard College on scholarship, rising to the top of his class and graduating summa cum laude with bachelor’s degree in Social Studies. He then went on to attend Harvard Law, where he became the editor for the Harvard Law Review. After graduating magna cum laude from Harvard Law, Garland served as a clerk for the well-known Second Circuit Judge Henry Friendly and then subsequently Supreme Court Justice William Brennan. Garland then went into private practice at Arnold & Porter in Washington, D.C. and was named partner after four years in 1985, but moved on to serve as the assistant U.S. attorney for the District of Columbia under President George H.W. Bush. Garland’s service to that office was described by Attorney Jay Stephen, a Republican appointee, as having “dedication, sound judgment, excellent legal ability, a balanced temperament, and the highest ethical and professional standards.”
Garland was later selected as the Deputy Assistant Attorney General for the Criminal Division at the Department of Justice (“DOJ”), and later as the Principal Associate at the DOJ. In these two roles, he oversaw some of the most important federal criminal cases brought by the DOJ. The two most notable and well-known are Garland’s supervision of the prosecution of the Oklahoma City bombing case, as well as the Unabomber case. At the time, Oklahoma Governor Frank Keating, a Republican, stated that Garland “distinguished himself in a situation where he had to lead a highly complicated investigation and make quick decisions during critical times.”
After these 1990s prosecutions, he was nominated to the U.S. Court of Appeals for the District of Columbia in 1995 and was confirmed to the D.C. Circuit with a 76-23 vote by a majority support from both Republicans and Democrats in 1997. He continues to serve on the U.S. Court of Appeals and has been the Chief Judge for over three years now.
Subsequent to the death of Justice Antonin Scalia, President Obama nominated Garland to the Supreme Court of the United States. Garland has built a reputation for himself that speaks wonders. He is known for “playing it straight, and deciding every case based on what the law requires.” Garland has personally stated, “[t]he role of the court is to apply the law to the facts of the case before it – not to legislate, not to arrogate to itself the executive power, not to hand down advisory opinions on the issues of the day.” However, some may describe Garland as “a moderate-to-liberal Justice” and with that comes the possibility that the Supreme Court “would tip to the left on several key issues, like abortion, affirmative action, the death penalty, gun control, campaign spending, immigration ad environmental protection.” This statement, however, may be considered skeptical because only time will tell if Judge Garland is confirmed to the bench, and will even hear these types of cases.
With elections right around the corner, many people were split on whether President Obama should have even made a nomination. Republicans tend to argue that the next President should be the one to make the nomination, while Democrats argue the opposite. However, since President Obama has made a nomination under his constitutional authority, the next issue is whether the Senate should vote to confirm Garland. Given the historical context of the Constitution, more people are likely to think that the Senate should vote now. As stated before, with elections right around the corner, a minority believe that the current Senate should not vote on the nomination no matter how the November elections turn out.
By Ryan Vince
Regardless of whether you support or oppose an increase in the federal minimum wage, human beings need jobs to survive. One factor that already does and will continue to affect the job marketplace is the fast-paced development of artificial intelligence (AI) and robotics. This rapid increase in robotic creation could threaten people’s jobs by eliminating the need to pay wages or a salary: welcome to the “fourth industrial revolution.”
According to several studies, robots could replace nearly half of all jobs that are currently performed by humans in the next ten to fifteen years. One report even suggested that, with today’s technology, it was feasible to replace 45% of jobs right now. While robots cannot wipe out every job performed by humans (yet), advances in automation are rapidly increasing that plausibility. Supposedly, people who occupy positions involving complex human interaction should feel strongly about his or her job security. These jobs include teachers, police officers, or employees in management roles. However, low-skilled and/or low-wage employees who engage in repeated tasks have the highest risk of replacement. Examples of these include cashiers, servers, or assembly line workers. Because a machine can easily replicate these skills, companies may pursue this alternative if there is a financial benefit in doing so.
Companies have already made technological advances in the way they serve customers and patrons. McDonald’s and Panera Bread Co., for example, both use self-service kiosks where customers can make food orders. While both companies continue to employ human cashiers, customers are given the opportunity to place an order without ever seeing a face. Additionally, Hilton Hotels added a robot named, “Connie,” to its workforce. Connie is a 2.5-foot tall robot that assists guests like that of a typical human concierge. Likewise, the CEO of Carl’s Jr. and Hardees, Andy Puzder, has expressed interested in opening up an employee-free restaurant similar to that of the restaurant Eatsa. Mr. Pudzer criticizes the government’s demand for an increase in labor costs and says that he will hire fewer workers if necessary. Despite the CEO’s underlying reason for shifting to a robotic labor force, the shift is nonetheless inevitable.
Low-skilled positions are not the only ones threatened by the increase in technology. According the 46th World Economic Forum (WEF), about 70% of today’s children studying in lower schools will be working in jobs that do not yet exist. Common sense leads one to assume that these “nonexistent” future jobs consist of machine operators and machine technicians. The authors of the WEF study said, “Developments in genetics, artificial intelligence, robotics, nanotechnology, 3D printing and biotechnology . . . are all building on and amplifying one another. This will lay the foundation for a revolution more comprehensive and all-encompassing than anything we have ever seen.” The extent to which employment is to be consumed by technology is definitively unknown. One thing we do know is that machines are already “on the job” in various industries. After reading about the student who 3-D printed his own braces, I would not disagree with the proposition that all jobs could be in jeopardy.
Humans’ collective infatuation with social and digital media plays right into the hands of “job-seeking” robots. People increasingly rely on social networking sites to keep up with friends, family, and colleagues. As these electronic relationships continue to build, so does the disinterest to engage in face-to-face interaction. Based on this logic, today’s consumers are becoming less interested in similar interactions. When continuous interaction with technology becomes a normality, it may also become a preference. The human race is losing its human-to-human interaction, and consequently, our dependence on technology could threaten the way humans making a living.
By: Jennifer Stevens
On Monday, February 22, the Charlotte City Council approved an ordinance that expanded protection to the Lesbian, Gay, Bisexual, and Transgender Community (LGBT). The change in ordinance means that businesses may not discriminate against the LGBT community. The ordinance also reached public forums, such as bars, restaurants, and stores. Although the ordinance in itself sparked some tension, the most controversial part of the ordinance allows transgender people to use either a male or female bathroom, dependent on what gender with which they identify. The main concern from those who opposed the ordinance was the safety of women and girls sharing a public bathroom with someone born male. The main concern for supporters was the risk of violence to transgender people in the bathroom.
Many citizens of Charlotte spoke out about the issue. In fact, so many people showed up to the council meeting that firefighters had to stop allowing people to enter due to the capacity of the building being full. Opinions ranged from people saying the ordinance was “filthy and wicked” to “I only want to be treated equally.”
Asheville’s City Council decided to address the pubic directly on Charlotte’s ordinance. The council addressed the ordinance directly and stated that it was absolutely unnecessary. The council made it a point to say that Asheville and many areas of the like do not have rules about who can and can’t use bathrooms available to the public in public places. Asheville has no intention to create an ordinance like that of Charlotte.
Governor Pat McCrory made the assumption that the bathroom provision would likely cause immediate action by legislators. The General Assembly of North Carolina has the ultimate say over city municipalities, and legislators could easily strike down the entire ordinance or eliminate provisions that were unwanted. A year ago, a similar ordinance failed in a 6-5 vote. Members of the council in Raleigh have mixed feelings about the ordinance and it is likely a decision will be made in the near future. With new members on the board, both of whom support the ordinance, the fate of the ordinance is up in the air. The Council has plenty of avenues to proceed, and with Charlotte being a progressive city; it is unlikely the entire ordinance will be struck down.
BY: WLLIAM G. HODGE
As the election season continues to heat up, one of the most important pending issues in our nation has played second fiddle to talk of small fingers and a wall that seems to grow by ten feet every day. The term “nomination” is coupled with words like authoritarianism and socialism rather than what it should be coupled with – justice.
With whom will President Obama replace the late Justice Scalia in the Supreme Court? In a recent article posted on the ABA Journal, Debra Weiss reported that President Obama is considering several federal judges that have served little time on the bench and have less of a track record that could subject them to criticism.
Among those candidates, it has been reported that the White House prefers nominees “with few ideological fingerprints” such as Judge Sri Srinivasan and Judge Merrick Garland that both serve as federal appeals judges in Washington, D.C. Federal appeals Judge Jane Kelly and U.S. District Judge Ketanji Brown Jackson have also been mentioned as potential nominees.
Here is a brief synopsis of these potential nominees, according to the Washington Post:
Judge Sri Srinivasan, 49, was confirmed to the U.S. Court of Appeals for the D.C. Circuit in 2013. Judge Srinivasan has served both Democrats and Republicans in his career and was a law clerk for Justice Sandra Day O’Connor. If appointed, he would be the Supreme Court’s first Asian American and first Hindu, further diversifying the Supreme Court bench.
Judge Merrick Garland, 63, currently serves as the Chief Justice of the U.S. Court of Appeals in Washington D.C. According to the New York Times, Judge Garland was confirmed with “substantial Republican support” back in 1997.
Judge Jane Kelly has served as a clerk for two judges in the past, one appointed by a Republican and the other appointed by a Democrat. Judge Kelly received backing from U.S. Senator Charles Grassley, a Republican, during her confirmation hearing for the 8th Circuit Court of Appeals.
U.S. District Judge Ketanji Brown Jackson of Washington D.C. was appointed in 2013 and is married to the twin brother of the brother-in-law of Republican House Speaker Paul Ryan. Judge Brown’s most notable opinion has been that the District of Columbia has shown a “willful blindness” to a deaf inmate’s need for accommodation and had violated the inmates’ disability rights.
For a complete list of nominees, please visit the Washington Post.
By Ryan Vince
Months after the tragic terrorist shooting in San Bernardino, California, Apple Inc. (“Apple”) and the Federal Bureau of Investigation (“FBI”) continue their legal skirmish over whether Apple should be forced to create new “backup” technology. After successfully thwarting one of the San Bernardino terrorists, Syed Rizwan Farook, law enforcement officials discovered the killer’s Apple iPhone 5c. The government, thinking it could gain access to a goldmine of terrorist information, issued an order requiring Apple to write software for “breaking” into Farook’s phone. At first glance you may think, “Yes! Find the terrorists!” However, this situation involves issues of both national security and personal security. If Apple creates software capable of breaking into an iPhone, the trusted security of the iPhone may forever be jeopardized.
First, Apple ordinarily has the ability to access information on a used iPhone through standard iCloud backups. In order to comply with law enforcement investigations, Apple has left one door open for access into a locked iPhone: through the iCloud. Unfortunately, according to the FBI, the San Bernardino County Department of Public Health changed the iCloud password associated with Farook’s phone. As a result, the typical means for accessing the terrorist’s phone are no longer feasible. Apple’s only door of entry has essentially been closed because the iCloud password has been altered. This alleged incident may seem trivial, but determining who is responsible for the password alterations may be strongly influential. If the government had an opportunity to backup Farook’s phone but botched it when it reset the password, a court may not compel Apple to comply with the order.
Second, with compelling arguments on both sides, Apple probably holds the stronger hand. Regarding the All Writs Act of 1789, courts may “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The discernible limitation to this rule is that “unreasonable burdens may not be imposed.” Much debate rests on the true definition of an “unreasonable burden,” where in U.S. v. NY Telephone, the Court ruled that the FBI could require NY Telephone, a “highly regulated public utility with a duty to serve the public,” to provide the FBI with pen registers (a list of dialed phone numbers) to assist in an investigation. Relating this ancient case to the current issue, Apple does have a duty to serve the public, Apple may be highly regulated in business and communication matters, but Apple is not a public utility. “Public utilities” are roughly defined as a set of services provided by organizations consumed by the public: electricity, natural gas, water, sewage, and more recently, broadband Internet. In U.S. v. NY Telephone, the Court ordered a public utility company to “provide” the FBI with pen registers, items already in use and in possession of the utility company. In the San Bernardino case, Apple, a publicly traded company, will be required to create and develop brand new software. At an unbiased vantage point, the facts in California are highly distinguishable to the facts in New York because of the disparate level in “burdens.”
The Ninth Circuit, which governs the district courts of California, has ruled that code is “protected speech” under the First Amendment. Whether or not this case goes to the Supreme Court, this Ninth Circuit ruling gives strong precedence to a First Amendment defense made by Apple. If writing new code is inconsistent with Apple’s vision, and/or the code threatens the safety of its consumers, a court will not require compliance with the order. Yet, this ruling does not resonate through all U.S. courts and this argument may not work in a situation such as this.
Arguments for a Fourth and Fifth Amendment defense come down to the murky legal jargon of “reasonableness” and “just compensation.” In making a Fourth Amendment defense, Apple will argue that when the government executes a search warrant, it needs to be done in a “reasonable manner,” and that forcing the company to develop software is unreasonable. Similarly, under the Fifth Amendment, the government must give “just compensation” when it takes private property for public use. Is unlocking a terrorist’s iPhone for purposes of national security truly public use? And if so, how do you justly compensate a company for fashioning software capable of breaching its own security? Regardless of how much the government would pay Apple, it would neither be just nor compensation of actual loss.
Apple’s emphasis of concern has been to protect the privacy and security of the users of its products. Throughout its existence, Apple has been able to achieve this goal by the consistent development of secure products. If the government successfully compels compliance with its order, Apple will be forced to create its own Achilles heel, a product capable of breaching its own secure products. Nevertheless, as long as the government acts “reasonably” or Apple is “justly compensated” for its time, then I guess all is well.