Why should religious freedom advocates pay attention the Apple-FBI encryption debate?
Last week, the battle between Apple and the FBI came to a temporary standstill when the FBI announced that an independent third party had offered a solution for unlocking the San Bernardino terrorist’s iPhone. But this pause doesn’t end the underlying dispute between the government and Apple, which will continue to make encrypted devices.
As an Apple spokeswoman stated on Monday, “This case raised issues which deserve a national conversation about our civil liberties, and our collective security and privacy. Apple remains committed to participating in that discussion.”
When the tech giant sought to block a federal request to access the San Bernardino terrorist’s iPhone, privacy was clearly a major issue at stake. In a court filing last month, Apple attorneys cited the First Amendment and the Fifth Amendment’s due process clause. By claiming these constitutional protections as a corporation, their defense recalled another company in the headlines for resisting government orders: Hobby Lobby.
More than half of Americans sided against Hobby Lobby before the 5-4 Supreme Court ruling that granted them a religious accommodation from a generally applicable law—a requirement that employers cover contraceptives in their health plans. Critics claimed that corporations, unlike actual persons, cannot have constitutional rights; in addition, many were distressed that the decision allowed Hobby Lobby’s owners to operate their closely held company consistent with their personal religious opposition to the morning-after pill. Supporters claimed that it was unreasonable for the government to not offer to closely held corporations the same religious accommodations that it offered to religious nonprofits that, like Hobby Lobby’s owners, affirmed that covering contraceptives they believed to be abortifacients in their employee health plan violated their sincere religious beliefs.
Despite Apple’s ubiquitous popularity and polished consumer status, public opinion remains polarized over its latest legal battle. Its claims give us another chance to consider constitutional protections for institutions.
Responding to consumer demand for privacy, Apple’s iPhones possess seemingly unbreakable encryption. According to the company’s motion to vacate, the government asked the company to write unlocking software that will work only on this particular iPhone, belonging to Syed Rizwan Farook. Apple argues that since the law treats computer code as speech, the government is attempting to violate First Amendment rights by compelling its speech. The government must show that getting Apple to create this code is “narrowly tailored to maintain a compelling state interest.” Apple claims the FBI has not submitted any evidence that the iPhone holds relevant information that the government needs.
In the Hobby Lobby case, the government faced similar burdens under the Religious Freedom Restoration Act. It had to demonstrate that the contraceptive mandate was the “least restrictive means” to achieve its compelling interest. Ultimately, the court ruled that in asking Hobby Lobby to violate its sincerely held religious beliefs, the government had not chosen the least burdensome approach.
The continued media coverage of Apple’s case offers an opportunity for religious freedom advocates. Its example reminds us of the broad importance of protecting organizations—both secular and religious, for-profit and non-profit—from compulsion to act against their most foundational values. This comparison between the Apple case and the Hobby Lobby case is not exact, but the two are closer than we may realize.