If Manhattan DA Cy Vance’s New York Times op-ed supporting the FBI’s attempt to force Apple to unlock an iPhone was annoying, then prosecutor Andrew King’s blog post at Fault Lines is infuriating. Starting with the title, “Uncle Sam can Compel Apple — Whether You Like It Or Not,” King’s argument about the FBI’s demand on Apple seems to boil down to a simple message: Fuck you, do as you’re told.
Persons and things can be examined and seized under the Fourth Amendment. Parties in court cases can compel witnesses to attend trials. Non-parties to civil and criminal cases can be forced to produce documents and other items on behalf of private parties.
Those examples are a little different from what the FBI is demanding of Apple. The court order isn’t for Apple employees to testify in a trial or turn over evidence in Apple’s possession. The FBI is demanding that Apple use its resources to develop a piece of software for the FBI.
To see why that’s a problem, let’s consider a few thought experiments. Suppose the FBI wins all its legal maneuvers and gets a solid ruling that Apple must develop the iPhone-cracking software for the FBI or else (for values of or else that include lengthy contempt sentences for Apple’s corporate officers). Now suppose that on the very day of that ruling, every single Apple software engineer quits their job. What could the FBI do then?
It’s not the Apple corporate officers’ fault that all the engineers quit — Apple has no way to prevent employees from leaving. And in any case, threatening the corporate officers with jail won’t get the software written, because they don’t know how. So what alternatives does the FBI have? Force the engineers to come back to work at Apple? Get court orders against individual software engineers, forcing them to write code for the FBI?
If that scenario is too fanciful for you, let’s try something a little more realistic. Suppose Apple unlocks the phone, and the FBI agents discover that the owner used a third-party iPhone app to store encrypted notes. The FBI now has yet another layer of encryption to get through, so now they need to get another court order to force the app developer to help them. But what if instead of a behemoth like Apple, the app developer is a tiny one-man software shop? Would the FBI actually force an innocent software developer to spend months writing software for them?
Would we want them to have that power? I don’t think so, at least not since the ratification of the Thirteenth Amendment. Because forcing people to work for your benefit is pretty much the definition of slavery.
Don’t get me wrong, I’m not saying that forcing Apple or their developers to write software for the FBI is exactly the same thing as historic American chattel slavery. What I am saying, however, is that both kinds of involuntary labor are bad for the same reasons. If you made a map of all the evils in the world, plantation slavery would be out at the extreme edge, but they’d both be in the same direction. And that’s a similarity we should take notice of.
You may think I’m being over-the-top by comparing FBI vs. Apple to slavery, but Andrew King goes there himself:
And it’s not just the judicial branch, law enforcement has historically had the power to force local citizens to join a posse. So too was the interment of people based solely on their ancestry found to be legitimate. Of course there’s still selective service—soon to include the other half of the population.
None of that is to say that the government always uses that power wisely. For example, the Fugitive Slave Act compelled Northerners to aid in the capture of fleeing slaves and likely hastened the onset of war.
I honestly don’t know what to make of this. To bolster his argument that the government has the authority to compel Apple to write software, King is invoking conscription, the Japanese internment, and slavery? Those are not exactly our government’s most admired accomplishments. Slavery and internment are widely regarded as evil, and conscription has been kicked to the curb.
Is he trolling us? I mean, it sounds like something a troll would say to piss people off: Of course we can force Apple programmers to write code. After all, we forced the Negroes to pick cotton, right? And calling the Fugitive Slave Act “unwise” is letting it off pretty easy. Slavery isn’t just a bad idea, it’s a crime against humanity.
Or am I missing the sarcasm? Perhaps he’s linking the Apple court order to the evils of conscription, internment, and slavery as a way to ironically point out what a bad idea it is. “Yeah, forcing people to work against their will, that never turns out badly…”
I think he means it, though, because of statements like this:
But the wisdom of the government exercising authority is not the same thing as whether the government has the authority.
King’s definition of authority seems to be nothing more than the capacity and will to use violence. In that sense, of course, he’s right about the Apple situation. The government certainly could send SWAT teams to seize Apple facilities by force of arms and compel its software developers to write code for the FBI. If authority doesn’t need to have limits or legitimacy, then the government has the authority to do whatever it wants.
[The] assertion that the government can coerce private citizens to act in certain ways is both mundane and incontestable.
You know what else is both mundane and incontestable? That private citizens can use violence to coerce other private citizens. It happens all the time. If might makes right, and there’s no need for moral authority or limits to power, then how does the thug have any less authority than the police officer? And why should we assume there is a difference between them? It’s certainly not an argument that leads to respect for the criminal justice system. It’s Fuck you, do as you’re told.
Well said.