Apple and the Thirteenth Amendment

Forgive me for being churlish, curmudgeonly, even, but Apple Inc. has thus far fired far wide of the mark in its dispute with the Federal Bureau of Investigation. What’s at stake in the iPhone controversy is far more significant than balancing privacy and security.

The federal government’s posture in this case comes dangerously close to repealing the Thirteenth Amendment to the United States Constitution.

The Thirteenth? Which one is that?

Let me recite the heart of it verbatim for you: “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.”

Of course, we are forced to do all sorts of things on pain of imprisonment: We pay taxes, of course. But that is the mere writing of a check arising out of past earnings sifted through the million and one pinpricks of our tax code.

Eminent domain takes property on judicial order, but only after its owner has been paid a fair price for it.

We are also required to get licenses to do such things as drive a car or carry a handgun. Yet, necessary as cars and guns may seem to many folks, you can, and many indeed do, live without them. Licensure requirements are what lawyers call conditions precedent to the right to do certain things.

And anyone of us can be ordered to bring documents or items to a courtroom by a lawyer signing a subpoena and serving it upon us. (The word has its origin in two Latin words meaning under penalty — ignore a subpoena and face a contempt hearing.)

Most major corporations hire a retired law enforcement officer whose job it is to respond to subpoenas. They are what is known as records custodians. They come to court with documents from the company files; they might even be capable of explaining what’s written on the documents.

But the documents in question are typically what are known as business records — items prepared in the ordinary course of business and maintained by company employees. The documents are deemed reliable because they are not created to advance litigation interests. They are routine records.

But nothing in the federal Constitution gives the government the power to compel people to perform services for the government. (Other than the draft.) Indeed, the Thirteenth Amendment expressly forbids such a thing.

I cannot recall a judge’s requiring anything like what United States Magistrate Judge Sheri Pym in California’s Central District ordered Apple to do. She has ordered Apple to create software to defeat a security program on its popular iPhone, and to give it to the federal government.

Put another way: Apple has to order its employees to perform a service for the government, a service the company does not want to perform. If that’s not involuntary servitude, I don’t know what is.

Magistrate Judge Pym is not a lifetime appointee, thankfully. Magistrate judges are not created by the Constitution, but by statute, and serve for eight-year terms. They serve as auxiliary judges, often making preliminary rulings, and sometimes presiding over civil, but not criminal, trials. This B-team assault on the Constitution ought not to stand.

Let’s cut to the chase in the Apple case. The government doesn’t need access to the iPhone of one of the San Bernardino shooters to prevent the collapse of the new World Trade Center. It just wants to follow up leads, to see whether it can find other potential shooters. It’s fishing.

To keep us safe from potential threats it seeks to draft private companies into a civilian form of slavery. Awaken, ye Sons of Liberty, awaken while there is still time.

I am far more chilled by the prospect of a federal judge telling me what I need to do at the government’s demand than I am by learning the identity of some loser who egged-on a gunman.

Just how did things come to this sorry pass?

The California jurist misapplied a little-used law called the All Writs Act. This act gives to the Courts the power to enforce its orders; it’s a grant giving federal judges the power to do what is necessary to assure that its rulings are given full force and effect.

But nothing in the subpoena issued to Apple required it to work for the government. The claim that it does is simply ridiculous. Producing a document from a file cabinet is not the same as writing a computer program on the orders of a federal agent.

Some defenders of the government contend that Apple is not being a good citizen. It ought simply to do what the government asks. Paradoxically, I see this claim coming from those whose lips generally drip scorn for the government.

What’s the harm if Apple is paid, some ask.

The harm is simple: If you believe in a government of limited powers, then there are some things the government cannot compel. The Thirteenth Amendment bans involuntary service, with or without pay. What next, an order requiring those under 30 to shovel the city’s streets after the next snow? Give a master a whip and he’ll find slaves everywhere.

For the first time since Edward Snowden’s disclosures, I feel something like hope as regards federal snooping and eavesdropping. It turns out there are things the government cannot do, such as defeat encryption on my phone. Hallelujah, I say. Hallelujah.

Lawmen coast to coast are in support of forcing Apple to do the FBI’s bidding, of course. They want to gain access to the contents of iPhones to solve all sorts of crimes. That’s good, right?

It’s only good when it’s someone else being forced to bear the federal yoke. Give in on this, and expect the reach of the government’s cold fingers to travel up your spine in time.

Wake up, Apple. This is a far more significant fight than you appear to realize. This isn’t balancing security and liberty; it is revisiting something perilously close to slavery, one small step at a time.

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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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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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