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.
Apple argues that the court’s request counters its core values of data security and privacy. “Courts look very unfavorably in circumstances where the government forces a private citizen or an organization perhaps to speak, to say something—especially if it [is] a view that they don’t side with,” said David O’Brien, a senior researcher at Harvard University’s Berkman Center for Internet and Society, in Forbes.
There’s reason to for us to also look “unfavorably” on government coercion of religious organizations that get pressed to act against bedrock faith doctrines, to adopt “a view that they don’t side with.” Last week, the Supreme Court heard a case involving Little Sisters of the Poor, a group of Catholic nuns who argue that they cannot in good faith offer an employee health plan that contains contraceptives. (They belong to a religious non-profit organization, rather than a church or church auxiliary, which are exempt.)
These cases give us a chance to consider the public good of providing institutions—whether beloved technology companies, niche craft stores, or religious nonprofits run by nuns—with enough freedom to live out their core missions and principles. In our pluralistic society, everyone benefits when diverse institutions, representing diverse people and interests, are given the space to serve and operate according to their most foundational values and purposes.
As Justice Alito, in his majority opinion in Hobby Lobby, pointed out: “A corporation is simply a form of organization used by human beings to achieve desired ends.” And so, “protecting the free-exercise rights of corporations like Hobby Lobby … protects the religious liberty of the humans who own and control those companies.” Likewise, it could be argued, that protecting the free speech rights of companies like Apple protects the humans who run it to safeguard one of their most bedrock values: the privacy of their customers.
The FBI challenge to Apple’s encryption may resonate with Americans more than nuns or Christian craft store owners pushing back against birth control coverage. But constitutional rights are constitutional rights, and we should be eager to defend an organization’s freedom to lawfully operate according to the beliefs that define it and its members—even if they aren’t beliefs we happen to share.
Where government has a compelling interest, whether that interest is national security or preventative health coverage for women, the government still has an obligation to balance these interests against the interests of institutions it is trying to coerce to act in violation of their most elemental values. Rather than watch our organizations turn on their own principles, we can look to the government to develop creative, common sense solutions that uphold government aims without violating the group’s beliefs.
Apple ends its motion with this: “The government’s desire … does not authorize it to cut off debate and leave no stone unturned.” In today’s diverse marketplace of opinions and views, organizations and businesses alike need the freedom to live out their values in the interest of the people they serve. While our faith-based organizations will likely never rise to Apple status, let us take this debate as an opportunity to showcase to the public the importance of First Amendment rights for individuals, as well as the many varied institutions they create to serve the diverse needs of a diverse society.
Chelsea Langston is the director of equipping for the Institutional Religious Freedom Alliance, a division of the Center for Public Justice. She holds a JD from the University of Michigan School of Law and is licensed by the State Bar of Michigan.