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Could the Apple encryption case also be about free speech?




FukeL People walk outside the Apple store on the Fifth Avenue in New York on Feb. 17, 2016.
Apple's challenge of a court order to unlock an iPhone used by one of the San Bernardino killers opens up a new front in the long-running battle between technology companies and the government over encryption.
FukeL People walk outside the Apple store on the Fifth Avenue in New York on Feb. 17, 2016. Apple's challenge of a court order to unlock an iPhone used by one of the San Bernardino killers opens up a new front in the long-running battle between technology companies and the government over encryption.
Kena Betancur/AFP/Getty Images

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In the Apple encryption case, much of the debate so far has centered on the tension between the right to privacy and the government's attempt to access vital information when it comes to crime or terrorism.

FBI Director James Comey has said unlocking the phone from San Bernardino shooter Syad Farook could provide important information to the investigation. Apple Chief Tim Cook counters that it's an unprecedented move that threatens the security of its users.

But there may be another issue at play: the first amendment and speech.

"The question really is going to be: when Apple speaks to its robots, one of its machines, is that a form of expression that constitutes a substantive value or statement of belief?" said Andrew Woods, law professor at the University of Kentucky.

The idea that code is a form of protected speech has already been established in a landmark 1996 case, called Bernstein vs. Department of Justice, said Woods. But the current Apple case is breaking new ground and pushing the question of what a person or company should be compelled to do or say in an increasingly digital world.

"That's novel terrain for the court," said Woods.