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ASNE: Constitutional rights must be protected in Apple-FBI case

 
ASNE understands the FBI's interest in learning as much as possible about the events that led Farook and his wife, Tashfeen Malik, to kill 14 people last December. However, the precedents set in this case might have significant ramifications on First Amendment protections offered to journalists and other private citizens. Our hope is that any resolution creates a clear standard that appropriately protects the constitutional rights of anyone involved, especially as such standards already exist in the law. 
 
ASNE has watched with interest and concern the dispute between Apple and the Federal Bureau of Investigation over access to information on the iPhone of San Bernardino, California, shooter Syed Farook. 

We understand the FBI's interest in learning as much as possible about the events that led Farook and his wife, Tashfeen Malik, to kill 14 people last December. However, the precedents set in this case might have significant ramifications on First Amendment protections offered to journalists and other private citizens. Our hope is that any resolution creates a clear standard that appropriately protects the constitutional rights of anyone involved, especially as such standards already exist in the law. 

This case could set a dangerous precedent regarding when an individual or company can be forced by the government to act or speak in the future. Given that forcing someone to speak presents no less a constitutional concern than restricting his or her speech, the standard applied here should be appropriately high, not impossible to achieve but certainly difficult and only where a compelling government interest exists and the government does not act more broadly than necessary. 

Individuals and companies should not become an extension of the government by being forced to speak or otherwise express themselves on the government's behalf. The government is asking a court to force Apple to write code to de-encrypt this iPhone. Our concern is how government agents might use such a precedent to seek future forced action and speech.

Journalists have a particular concern, also rooted in the First Amendment. They fear that if Apple loses this case, it could lead to the government asking courts to force reporters to open encrypted conversations with sources or otherwise compromise their First Amendment rights. The ability of journalists to protect their sources is essential for an effective, credible and independent press that spotlights corruption, abuse of office, fraud, mismanagement and a host of other problems that powerful authorities have reason to hide from the public. These authorities might seek to punish whistleblowers and others who expose incompetence, wrongdoing and worse. 

Perhaps unnoticed to many, as the dispute between Apple and the FBI was playing out in the United States, Brazilian law enforcement arrested a Facebook vice president based in Sao Paulo after the company refused to provide data contained on the company's "WhatsApp" messaging service. A similar issue was in play: Facebook refused to provide access to encrypted information relating to possible criminal activity (in this case, suspected drug trafficking). As a result, Facebook's Diego Dzodan spent 24 hours in jail before an appellate judge overturned the court order that led to his arrest.

Of course, Brazil is not the United States. Our rights to freedom of speech and due process should protect against similar arrests from occurring here. But decisions in the Apple-FBI case have the potential to erode Americans' constitutional rights and the ability of journalists to protect their sources in a way that exposes them to arbitrary actions by law enforcement.

Whether access is granted to the contents of this phone is not necessarily as important as how this case will affect future situations. That is why we hope the result offers an appropriately clear and high standard necessary to protect broader constitutional rights.

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ASNE First Amendment Committee members Kevin Goldberg, Pam Fine, George Stanley and Joyce Terhaar contributed to this column. 

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