Feb
23

Apple, Involuntary Servitude, and the 13th Amendment

            Framing the dispute between Apple Inc. and the Federal Bureau of Investigation as the need to balance security and liberty tilts the debate in favor of the government. A more candid framing destroys the government’s assertions: the conflict pits slavery against freedom. Who favors slavery?

         Why isn’t anyone talking about the 13th Amendment in this debate about what the government can, and cannot, compel people to do?

         Enacted in the wake of the Civil War, the amendment is simplicity itself: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

         Let’s be blunt about things: The FBI wants, and a trial court judge has ordered, that Apple engage in involuntary servitude. It is a vulgar and shocking display of judicial and executive overreach.        

         The conflict arises in the context of the FBI’s desire to crack the encryption on an Apple telephone belonging to Syed Rizwan Farook, one of the shooters in the San Bernardino shootings in December. Lawmen have his phone. They want to access data in it, to see if the leads will take them to other suspects, other plotters.

         Farook was using a telephone provided by his employer, so his expectation of privacy in the use of the phone is limited. The government has the lawful authority to search the phone.

         But Farook altered the privacy settings on his phone. Not only did he use a password to keep others from accessing data on his phone, he also disengaged from the Cloud, thus keeping the data on his phone in his phone: The only way to retrieve the data is to either enter the correct password or to create a program that bypasses the password requirement.

         What’s more, Farook relied upon a setting on the phone that programs it to destroy the data stored on his phone after 10 failed attempts to enter a password. This feature was designed and intended to keep data secure.

         Farook took his password to the grave with him. The government has 10 chances to guess his password; on the eleventh try, the phone’s data disappears.

         Federal prosecutors asked the court for relief under the All Writs Act. This statute gives the courts power to enter such orders as help enforce and vindicate court orders. Since the court had approved the search of the phone, the reasoning goes, it can issue such orders as are necessary to accomplish the ends of the search.

         But someone, please, tell me how this statute trumps the 13th Amendment? It is one thing to order a company to produce a document or a record, it is quite another to order it to do work it does not want to do.

         The court’s order that Apple engineers design a program to bypass its security features is nothing less than indentured servitude. It matters not that the government might be willing to pay Apple for its service, or that it will keep secure the program it compels Apple to create. The fact is the government wants to force Apple to undertake a task Apple does not want to do.

         That, my friends, is involuntary servitude.

         Tim Cook and Apple need to better frame this issue. A frightened public is permitted to sacrifice liberty, even privacy, for security. But how many folks are truly willing to sign up for a little slavery on Uncle Sam’s plantation?

Comments (2)
Posted on February 29, 2016 at 3:44 pm by Sean Donovan
Apple
Without getting into the merits of the 13th Amendment argument, which is cute, there is a practical solution for the Government that avoids any Constitutional dimensions.

The DOJ should dummy up numerous, identical iPhones reflecting Farook's settings, and post a large reward for any egghead who can crack one (and reproduce the results) without bricking the phone.

If only Apple's wizard employees are capable of the feat, and one or more is willing to assist, the price, naturally increases. They are surely shackled by punishing confidentiality/trade secret/non-compete agreements.

Of course, the Government could litigate the validity of those contracts per the classical "balancing test" you recite, but why bother?

Every man has his price. If the State believes the content of the dead terrorist's device is as valuable as it argues, surely it is willing to make someone not only spectacularly rich, but also to defend and indemnify him from any liability for breaching his deal with Apple?

Posted on February 24, 2016 at 7:58 am by 3AT
exactly right
I agree completely, and I've been wondering why Apple is (as of today) trying to play a dubious 1st amendment free speech card rather than using this involuntary servitude argument, which would seem to be more solid in this case.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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