The FBI is putting relentless pressure on Apple to hack the encrypted iPhone recovered from the San Bernardino shooters. For thwarting ongoing efforts to force technology companies to introduce backdoors for their encrypted products, Apple should be commended. All Americans need to pay attention to this battle, because it’s not free speech, due process or self-incrimination rights we should be worried about. What is really at stake is the 13th Amendment rights of Apple employees. Can the U.S. government force an individual – any American – to work for it?
“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."
The FBI is not asking Apple to turn over something in its possession, a power it certainly has, subject to due process. Rather it is trying to command Apple to create and surrender a hacked version of its iPhone operating system that will allow it to bypass protections, such as the phone deleting data after repeated incorrect attempts to guess the password. Also, who has to actually create this software? And under what power granted by the U.S. Constitution can the federal government force engineers to do so?
Suppose, for a moment, that Apple CEO Tim Cook cracks. That would be understandable. The federal government has so many ways to make Apple miserable – bureaucrats could crank up antitrust investigations, accuse Apple of tax evasion, turn down all of Apple’s H-1B visa requests and even instruct federal agencies not to purchase or use Apple products – Cook, Apple’s board and its shareholders may feel they have no choice.
If Apple surrenders, Cook would have to assemble a new software team to carry out a government-mandated task.
Now imagine if no Apple employee agreed to join that team. What can the FBI do about it? Can it demand that Tim Cook fire any employee who declines to participate? If so, under what enumerated power?
The U.S. Supreme Court has held that individuals have a duty to help governments carry out lawful exercises of judicial power in certain circumstances and that this does not violate the 13th Amendment if these orders do not impose an undue burden on individuals or businesses.
So can the FBI threaten individual Apple employees, insisting they comply? Can the court charge Apple with contempt if, due to its inability to assemble a team, Apple is unable to force people to sign a software development contract? Doing so would arguably exceed the government’s lawful power and raise concerns about the kind of involuntary servitude the 13th Amendment was intended to protect against.
Under the Supreme Court’s prevailing interpretation of the All Writs Act, it is possible the FBI might get its way. But is this the kind of power we want our government to have?
In this, and every battle with a federal government intent on building a comprehensive surveillance state by compromising commercial products, we engineers should have the last word: No. We’re not going to do it. And you can’t make us.
Originally posted to U.S. News & World Report.