Could the FBI really force Apple engineers to break encryption?

Would FBI Compelling Apple Mean Using Forced Labour?

News surfaced recently that, in the event that the FBI is successful in getting a court to compel Apple to unlock an iPhone, the company’s engineers might simply not do the work.

In addition to raising interesting practical questions (still hypothetical at this point) for the FBI, this turn raises interesting ethical questions about forced labour. It’s easy enough in the abstract to accept the idea of a court forcing a corporation — a lifeless thing —to do something. But it’s somewhat more difficult to stomach the idea of a court order compelling a number of human individuals to do work over a period of weeks. We’re all familiar of course with the idea of courts forcing people to do things — to disclose a piece of information, for example. But forcing labour, in the absence of a criminal conviction of the individuals involved, is dramatically different. It may even be a violation of the 13th Amendment to the U.S. constitution, which forbids “slavery [and] involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted.”

This is also a reminder of the complex relationship between corporations per se and the people that, roughly speaking, make them up.

Back in 2011, a lot of people criticized then-presidential candidate Mitt Romney for saying during a campaign stop that “corporations are people.“ In context, it was pretty clear that Romney wasn’t referring to the controversial notion of corporate personhood, but rather to the simple fact that corporations are (in a practical sense) composed of people. When corporations profit, inevitably some people profit. And, more importantly for the present case, when corporations do labour, some people do labour.

The current Apple v FBI situation is a good example of Romney’s point. You can’t compel Apple to unlock an iPhone without compelling its human engineers to do certain work.

Of course, requiring people to do work they don’t particularly want to do is generally regarded as permissible within the context of a labour contract. When you sign up for a particular job, no one promises you that you’ll love every minute of it. So in complying with the (possible, potential) court order, Apple’s engineers would merely be doing their jobs. But on the other hand, there’s apparently now evidence that such a request would be considered sufficiently odious to make those engineers give up their jobs entirely. In that event, getting the work done would mean either literally compelling the individual engineers to do the work, or finding engineers with very specific skills to take their place.

And news emerged just today that the FBI may have found a way to get into gunman Syed Rizwan Farook’s iPhone without the help of Apple and its engineers. Whether the non-Apple route will work remains unknown. But the case still raises interesting questions about the rights and duties of corporations, and the way (or the extent to which) those rights and duties are ultimately held by humans. We offer legal protection to corporate property, not out of respect for corporations but out of respect for their human owners. And we should think twice before legally compelling corporate action, when that action would in practice imply forced labour for the corporation’s human employees.

4 comments so far

  1. Greybeard on

    This is implicit in what you write, but I’d suggest it should be explicit: Apple can say “Do this or you’re fired”. For the FBI/government to say “Do this or ” is another matter. Thanks for writing about this — it’s been bothering me since the whole issue arose, and hasn’t been covered, at least not elsewhere that I’ve seen. You nailed the issue.

  2. MikeG on

    How do we distinguish between the labor of engineers forced to write the demanded code and the labor of a corporation’s legal (and other) staff to produce subpoenaed documents? Such labor forced by litigation has been with us forever, hasn’t it? And yet there indeed must be a critical difference in this case. Can anyone articulate what it is? I would guess that this difference would be one of the key points in any case that goes to trial.

    • Chris MacDonald on

      Great question. A first attempt at a response: part of a lawyer’s job is to respond to subpoenas. If you sign on to be one of Apple’s lawyers, you sign on for that. Not so for an engineer. (I’m not sure that’s fully convincing, but it’s one avenue of argumentation.)

      • MikeG on

        Thanks, I think that begins to get at the distinction. Keeping and producing records is a normal part of a corporation’s business. Developing on-demand code for a specific prosecution may not be. But this will eventually be clarified if this case or a similar one goes to court.

        However, there’s a different legal approach that the govt could take for the future: require a permanent “back door” for access to encrypted content. This has an entirely different set of legal issues (not the least of which is the existence of uncrackable encryption produced by entities not under the jurisdiction of American law).

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