AN ANALYSIS OF THE FIRST AMENDMENT THROUGH THE LENS OF SOCIAL MOVEMENTS: HOW APPLE’S LATEST IPHONE PATENT CAN CHANGE THE WAY WE RISE Ashley E. Russo* I. 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 * J.D. Candidate, Suffolk University Law School, 2018; Journal of High Technol- ogy Law, Managing Editor 2017-2018; B.A. History & Political Science, Hobart & William Smith Colleges, 2015. 1 See Nick Statt, 1 Billion Apple Devices Are in Active Use Around the World, THE VERGE (Jan. 26, 2016), archived at https://perma.cc/6D54-QRXA (portraying Ap- ple’s latest milestone of having 1 billion active devices throughout the world); see also iPhone X, APPLE (Nov. 3, 2017), archived at https://perma.cc/H8V4-96DM (describing the features and uses of an iPhone X). 2 See Katie Marsal, Apple Touts Iphone 6 as World’s Most Popular Camera in Showcase of Extraordinary User Photos, APPLE INSIDER (Mar. 1, 2016), archived at https://perma.cc/MW6Z-QSF2 (showcasing most popular apps and uses for the iPhone 6 camera); see also Jeff Storey, Q&A: Mickey Osterreicher, NEW YORK L. J., Aug. 17, 2012 (suggesting the influence camera phones have had on the ease of posting news stories). Copyright © 2018 Journal of High Technology Law and Ashley E. Russo. All Rights Reserved. ISSN 1536-7983. 332 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XVIII No. 2 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 mil- lions 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” (“In- frared Data Patent”).6 The system is designed to remotely disable the iPhone camera in places, such as concert venues, museums, and thea- ters.7 The language of the patent uses live concerts as the prime ex- ample of where this patent will achieve optimal use.8 With this pa- tented technology, performing musicians and artists will have their copyright protected from viewers who record and pirate live con- certs.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 3 See Fred I. Williams & Rehan M. Safiullah, The Smartphone Patent Wars: A U.S. Perspective, METRO. CORP. COUNS., Nov. 2012, at 12 (making the notion that peo- ple now have a sense to need everything at their fingertips). 4 See Apple Wins Patent On Technology To Stop Fans Filming Gigs, THE GUARDIAN (Jun. 30, 2016), archived at https://perma.cc/MQW4-L5D6 [hereinafter Guardian Music] (discussing some of the potential reasons for incorporating infra- red technology to stop filming at concerts per the benefit of the artist). 5 See U.S. Patent No. 9,380,225 (issued Jun. 28, 2016) (exemplifying the official patent that Apple may now use to disable iPhone cameras using infrared technol- ogy). 6 Id. 7 See id. (portraying the technology’s capabilities to include data encoded based on amplitude modulation, frequency modulation, phase modulation or a combination thereof, which can correspond to any suitable information or commands, such as a command to disable recording functions). 8 See id. at 40 (using concert venues as an example of how the patent will be best put to use). See also Guardian Music, supra note 4 (considering the implications of being unable to take photos or film at concerts, and even uploading online). 9 See Ben Lovejoy, Apple Granted Patent for Way to Stop iPhones from Taking Photos at Concerts or Sensitive Locations, 9TO5MAC (Jun. 28, 2016), archived at https://perma.cc/9K6M-4XRL (arguing that this patent could prevent concert at- tendees from being distracted by capturing the show on their phone). 10 See id. (discussing the notion that people are distracted by their iPhones at con- certs); Guardian Music, supra note 4 (reasoning that there are implications to being unable to take photos and videos at concerts); Williams et al., supra note 3, at 12 (noting the need that Americans feel to constantly have their smartphones in use). 2018] AN ANALYSIS OF THE FIRST AMENDMENT 333 used by the police or the government, who could benefit from disa- bling 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 loca- tions 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 fun- damental rights as Americans under the First Amendment – the free- dom to express ourselves through means of photographs, speech, pro- test, and religion, among several other things.14 This Note will explore the potential First Amendment viola- tions 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 po- lice or the government should be forbidden, because doing so would be a violation of the First Amendment of the United States Constitu- tion.17 11 See infra Analysis: Section B (analyzing the reasons as to why the police or gov- ernment might want to implement the Infrared Data Patent to their daily uses). 12 See infra Analysis: Section B (discussing the implications of the police and gov- ernment having the ability to implement the Infrared Data Patent in certain situa- tions). 13 See infra Analysis: Section B (explaining how the Infrared Data Patent works by using infrared signals). 14 See U.S. CONST. amend. I (providing language of the First Amendment to the United States Constitution that gives citizens the rights to freedom of speech, reli- gion, protest, and press). 15 See infra Analysis: Section B (exploring the potential implications of First Amendment violations that could arise as a result of Apple’s iPhone infrared patent technology). 16 See infra History: Section A (interpreting the First Amendment as applies to de- veloping smartphone technology); see also infra Facts (portraying the reasons as to why people are now so reliant on their smartphones). 17 See infra Analysis (determining that there would be a First Amendment violation if the police were to use the Infrared Data Patent as a way of disabling people from recording them, or using their iPhone cameras during protests). 334 JOURNAL OF HIGH TECHNOLOGY LAW [Vol. XVIII No. 2 II. History A. 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 Four- teenth 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 18 See Peter Moore, The First Amendment is the Most Widely Known Amendment in the Bill Of Rights, and the Most Appreciated, YOUGOV (Apr. 12, 2016), archived at https://perma.cc/5CDW-ZCDG (pontificating on the relevance and renown of the First Amendment, and noting that 41% of Americans say that it is the most im- portant Amendment of the Bill of Rights); see also Thor Benson, Beyond the First Amendment: You’re Probably Confused About Free Speech, SALON (Aug. 31, 2016), archived at https://perma.cc/XU6H-LMPJ (articulating the notion that with the rise of technology, the First Amendment gets stretched). Experts claim that this is done so by the freedom to post on Internet sources, such as Twitter and Face- book, yet people do not understand that the freedom of speech is larger than the First Amendment.