Mimesis Law
26 June 2019

Uncle Sam Can Compel Apple — Whether You Like It Or Not

Feb. 24, 2016 (Mimesis Law) — In response to the claim that Apple ought to help the FBI, many commenters argued that government should not be allowed to compel a private citizen into rendering assistance. In much of that commentary, Apple is often portrayed as the victim of government overreach. Other commenters have gone so far as to state it’s patriotic to side against the government in favor of privacy. So too did Apple co-founder Steve Wozinak frame the issue as, in part, one of privacy:

Privacy has a good bearing. I grew up and was kind of taught that the Bill of Rights was really absolute core values that we should have. And now I find out, oh, well, we can just sort of disagree and go around them anytime we feel like it.

On the other hand, the FBI Director argues that it’s all about justice and the need to be able to look victims in the eye. The lawfulness of compulsion is apparently determined by emotions now. But those emotions can quickly turn to anger. Law professor Orin Kerr started a poll on Twitter to explore the question of whether his followers are categorically against all searches or could appreciate the other side of the argument. Kerr was quickly forced to apologize for suggesting that the government has the authority to conduct searches. The ABA’s interest in catering to the emotions of law students is already paying dividends. We’ve come to the point where considering other side of the argument is a microaggression or something.

Aside from genuine concerns about creating a permanent encryption backdoor, the above rhetoric is pure applesauce. That the assertion that the government can coerce private citizens to act in certain ways is both mundane and incontestable. Unless you are a philosophical anarchist, you happily rely on the government compelling private citizens to do things on behalf of the government. And if you are an anarchist, then you rely on government coercion, but you are just grumpy about it.

A private citizen can be forced to sell their land to the government thanks to the takings clause. 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.  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. Later, the same principle was used by the federal government to fight the Klu Klux Klan. But the wisdom of the government exercising authority is not the same thing as whether the government has the authority. So we can certainly argue whether forcing Apple to assist is a good idea. And it’s better framed as security vs. security and not the old saw privacy vs. liberty.

So, getting a court order to compel Apple to disable some features permitting the FBI to attempt to crack the password is hardly either extraordinary or unprecedented. In this particular case, the FBI wishes to compel Apple’s assistance under the All Writs Acts. Orin Kerr thoroughly discussed the legal authority for the FBI’s demand, including citing to some precedent

According to the Justice White, “citizens have a duty to assist in enforcement of the laws.” White cited a 1928 decision by Justice Cardozo, then a state court judge, in which he had written: “As in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.”

Here too the judiciary recognizes that government compulsion is permissible and even goes so far as to speak about it in romantic terms. But then again that is entirely in keeping with Justice Cardozo’s reputation. As Professor Kerr concludes, the FBI’s legal theory may prove unavailing:

As I mentioned in my first post, I don’t know which side should win. Part of the reason is that I’m waiting on development of the facts. But as this post has showed, part of the problem is that the scope of authority under the AWA is just very unclear as applied to the Apple case. This case is like a crazy-hard law school exam hypothetical in which a professor gives students an unanswerable problem just to see how they do.

Certainly, the media and commentators can be forgiven for not understanding the nuances of an “unanswerable problem.” But they should be chastised for inane utterings about how supposedly unprecedented this.

5 Comments on this post.

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  • Tommy Gilley
    24 February 2016 at 9:52 am - Reply

    I guess that’s the best argument a government can make, especially a representative democracy. Even better is when you hear ‘We know what’s best for you’. Those types of governments last a long time with a peaceful happy populace.

  • Peter
    24 February 2016 at 1:06 pm - Reply

    The government apparently has the /legal/ authority, but do they have the legitimacy? There is nothing a government hates more than people keeping secrets from it. So why have they given Apple so much rope? Why didn’t they go all Branch Davidian on the Cupertino campus week ago? Formal power and actual power are two different things, and I think in this case there is some level of recognition that public opinion* (not to be conflated with the media portrayal of it) can’t totally be ignored. Instances like this make it clear government coercion isn’t the only form of power out there–and I suspect that’s what really getting people in a dither.

    *A large, vocal minority of which sides with Apple.

  • Keith
    24 February 2016 at 1:24 pm - Reply

    That the assertion that the government can coerce private citizens to act in certain ways is both mundane and incontestable.

    Within reason. It still needs to be related to the business of Apple, not be too onerous (or in terms you lawyer people like to use, without an unnecessary burden) and substantially related to the warrant issued, if I understand the All Writs act and New York Telephone, correctly.

    Question for you though: Can the undue burden be that of the aggregate for the sheer number of requests that will flood in when they create such a tool or is it likely to be judged on the specific and independent application in question for any particular warrant?

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    6 March 2016 at 3:03 pm - Reply

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