AN ANALYSIS OF THE FIRST AMENDMENT THROUGH THE LENS OF SOCIAL MOVEMENTS: HOW APPLE'S LATEST IPHONE PATENT CAN CHANGE THE WAY WE RISE.

• Author: Russo, Ashley E.

1. Introduction

   Every day, all across the world, billions of people use their iPhone as a vital source for communicating, gathering information, listening to music, and capturing photos and videos. (1) With the swipe of a finger or the touch of a button, billions of people worldwide have the technology in the palm of their hands to capture any moment that they want--whether it be a treasured memory, an Instagram photo of a user's latest meal, or even a video of a newsworthy story. (2) In fact, Americans use their iPhones so often that they may have a tendency to overlook the implications of having such significant power at their fingertips. (3) Recently, Apple obtained a patent, which could pose a threat to the ability of users to freely use their iPhone cameras. (4)

   The United States Patent and Trademark Office recently granted Apple a patent that has the potential to change the way millions of iPhone users use their cell phone, specifically the camera. (5) The patent is titled "Systems and methods for receiving infrared data with a camera designed to detect images based on visible light" ("Infrared Data Patent"). (6) The system is designed to remotely disable the iPhone camera in places, such as concert venues, museums, and theaters. (7) The language of the patent uses live concerts as the prime example of where this patent will achieve optimal use. (8) With this patented technology, performing musicians and artists will have their copyright protected from viewers who record and pirate live concerts. (9)

   While this patent may seem appropriate to protect artists, it presents several serious implications that could change the way Americans use their iPhones. (10) What if this technology were to be used by the police or the government, who could benefit from disabling iPhone cameras at their discretion? (11) Alternatively, what if the police or the government--who are constantly facing backlash from video recordings and photographs--could enable this feature at locations of their choosing? (12) What if, by pointing infrared signals to a specific location, millions of Americans could find themselves unable to use their camera? (13) Arguably, this may pose a threat to basic fundamental rights as Americans under the First Amendment--the freedom to express ourselves through means of photographs, speech, protest, and religion, among several other things. (14)

   This Note will explore the potential First Amendment violations that could arise out of Apple's latest iPhone camera patent if the technology were to be adopted by the police and the government. (15) By exploring the history of the First Amendment and its evolution as it applies to photographs and video recordings in public places, this Note demonstrates both the media and the public's reliance on smartphone cameras, particularly that of the iPhone. (16) This Note will argue that the disabling of iPhone cameras in public places by the police or the government should be forbidden, because doing so would be a violation of the First Amendment of the United States Constitution. (17)

2. History

   1. History of the First Amendment

      The First Amendment of the United States Constitution is one of the most recognized forms of legislation in America. (18) Since its enactment in 1791, the First Amendment of the Constitution has served to protect American citizens from the government by enacting "... no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (19) Meanwhile, as a way of protecting the rights granted under the First Amendment, the Fourteenth Amendment of the United States Constitution states that:

      "... [n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (20) With this, the "fundamental personal rights" of American citizens, such as the right of natural born citizenship, life, liberty, property, and "equal protection of the laws," are protected, including those rights covered under the First Amendment. (21) Since the beginning of First Amendment jurisprudence, courts have held that any regulation that restrains speech due to its content constitutes a violation of the First Amendment. (22)

      Throughout the First Amendment's history, courts have hesitated to uphold statutes that provide a question of "improper infringement of the exercise of First Amendment rights." (23) For example, an "improper infringement" occurs when people are prevented from undertaking certain acts, such as peaceful canvassing, soliciting at homes, and even distributing pamphlets, so long as they are appropriate. (24) In fact, the only time a court has ruled that a statute is permitted to violate these rights is when that statute contains a compelling state interest--affecting a person's personal fundamental rights. (25) For example, a "compelling state interest" exists in matters of maintaining student body diversity in universities and regulations for abortions. (26)

      In order to recover on a First Amendment claim, a plaintiff must show how and why his or her conduct should be protected under the First

      Amendment. (27) Showing that the conduct constitutes a level of harassment, motivated by the exercise of his or her free speech also proves a First Amendment claim exists. (28) However, courts also note that a "mere attempt," such as a threat or a conspiracy, to deprive an individual of their First Amendment rights does not always grant that person the right to recover. (29) In order to determine whether a "mere attempt" to violate the First Amendment was made, courts look to the "nature of the forum in which the speaker's speech is restricted." (30) Forums can be either public or nonpublic, and the test for determining whether a First Amendment violation occurs is determinative on its location. (31) For instance, public places, or "forums," are those that are historically associated with allowing people to freely exercise various activities, such as "streets, sidewalks, and parks." (32) Thus, if a forum is not considered public, courts have held that it is constitutional to restrict expressive speech and conduct, so long as those restrictions are reasonable and are not made in any way due to an opposition of a public official's viewpoint. (33)

      As the technology surrounding cameras evolved, courts began to interpret First Amendment rights not only to expression through speech in the form of words, pamphlets, and writings, but also to photographs and video recording. (34) Most notably, courts have reviewed issues involving the allowance of personal cameras, and even media cameras within courtrooms, concluding that preventing these devices in a courtroom is not a violation of the freedom of speech under the First Amendment. (35) While cameras are occasionally allowed for the media, there are no circumstances in which the public is allowed to bring cameras into the courtroom to observe court proceedings. (36)

      With the exception of the courtroom, courts are generally more lenient when allocating First Amendment rights to film scenery, people, and activities as a matter of furthering the public interest. (37) The public has the right to videotape and sound-record conversations that are held in public, so long as those engaging in conversation would otherwise be overheard by others that are not involved in the conversation, and the recording is done so with a device that is readily apparent and available. (38) In Smith v. Cumming, the Court ruled that the First Amendment protects citizens by granting them the right to gather information about what public officials do on public property, specifically granting them the right to record. (39) This grants the public the right to record the police undergoing public duties. (40)

      Courts see a great public interest in allowing this, for it provides the public with the freedom and ability to "discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment." (41)

   2. The Circularity of the First and Fourth Amendments

      With the development of the First Amendment allowing for citizens to publically film the police, protections are also granted to citizens when facing the reverse situation--police officers recording the public with their own iPhones. (42) People are specifically protected under the Fourth Amendment of the Constitution, the right to be protected from unconstitutional searches and seizures, when the police film citizens with their own camera phones. (43) Under the Fourth Amendment, the public is heavily protected from unreasonable searches conducted by the police, especially when applied to smartphone searches. (44) Interestingly, police officers can engage in these searches in two forms. (45) The first instance occurs when the police are not simply observing, but recording images or sounds of other people, even in a public space. (46) If this allows a public official to record an event that they would otherwise not be able to see or hear, the recording is lawful. (47) Secondly, police are allowed to record members of the public when they allow themselves to catch glimpses of details on a person, or items a person is carrying, in order to see information that they would otherwise be unable to obtain without a pat-down or another form of search. (48) This includes using a camera that is not in a remote location, such as a suspended drone or a camera that is mounted on a police car (a "dash cam"), or using a zoom feature to see details of an image that the naked eye would not otherwise be able to. (49) To courts, these cameras are different...