Most people following the case -- in which a federal judge ordered Apple to give the FBI technical assistance to help it access an encrypted iPhone used by one of the alleged San Bernardino shooters -- are primarily interested in who wins, not how they win. But the legal issues go beyond the particular facts, or even broader concerns about public safety, privacy and encryption. That's because Apple and its allies have raised some fairly weird questions. If a law requires a company to write software code over its objection, does the law compel "speech"? Do corporations have "liberty"? Can a corporation be enslaved?
To be sure, most of Apple's legal argument focuses on whether or not Congress has authorized federal courts to issue the type of order involved here. The judge relied on a broadly written (but quite old) law called the All Writs Act that begs for some interpretation. Apple contends, with some force, that the All Writs Act shouldn't be interpreted to give judges this authority. A federal judge in New York agreed with this interpretation in an unrelated drug case (now under appeal). So Apple and many of its allies argue that the question of how far the law should go in requiring companies to provide technical assistance to the government in accessing encrypted phones should be decided by Congress, not the courts.
But Apple also insists that, whatever Congress might have said or might say in the future, it can't require Apple to help the FBI, because that would violate the ultimate trump card: corporate constitutional rights.
Apple's first constitutional claim is that the court order violates the company's First Amendment right to freedom of speech. According to Apple, the order compels "speech" because complying would require the company to write software code (tweaks to the iOS operating system) that the company would rather not write.
This type of compelled speech argument stems from a seminal 1943 Supreme Court case about Jehovah's Witnesses who objected to forced recitation of the Pledge of Allegiance. As the court then explained, "No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." The connection to the iPhone case may seem hazy, but courts have lately been treating corporations like religious objectors, even in the narrow context of stock market disclosure laws. An amicus brief from industry giants including Amazon, Facebook, Google and Microsoft summarizes the compelled speech theory here: "The government seeks to force Apple and its engineers to write software -- that is, to engage in protected speech -- against their will."
But in the information age, many laws require corporations to write software "against their will." Laws that govern everything from air pollution to the stock market increasingly require companies to submit compliance data in electronic formats. Complying with these laws will often involve writing code that company executives and staff might prefer not to write. (Even an Excel formula or a short script written by the company's IT department is software code.) Writing code to comply with legal requirements is a cost of doing business in the modern world. Apple's First Amendment argument, if accepted, could create a new "writing code" excuse for corporate objectors.
That's not far-fetched. Right now, the packaged food industry is suing Vermont over a state law requiring labels on food produced with genetically engineered ingredients. The companies say the law violates their right not to "speak." They also note that complying with the law would require expensive changes to inventory, labeling and distribution systems. They probably didn't think to argue that these changes would also require writing new software code, or that the fact that they would need to write new code is a separate First Amendment violation, but they're surely watching Apple's case unfold.
Apple's second constitutional argument cites the Fifth Amendment, which says that no "person" can be "deprived of life, liberty, or property, without due process of law." According to Apple, requiring technical assistance here would deprive it of "liberty." So far, though, corporate personhood hasn't swallowed the due process clause. Longstanding precedent -- stemming from an insurance company's attempt to challenge a consumer protection law making it harder for insurers to deny life insurance coverage -- holds that due process protects "the liberty of natural, not artificial, persons." Apple cites stirring Supreme Court language about "protection of the individual," but that gives away the game. Apple isn't an "individual," and as an artificial legal entity, it doesn't have the "unalienable rights" of "life, liberty and the pursuit of happiness."
The final (and most colorful) corporate personhood argument comes from an amicus brief by Lavabit, a software company that had its own run-in with the US government over encryption. Lavabit contends that a court order violates the Thirteenth Amendment, which was passed to end slavery. Under Lavabit's theory, the Thirteenth Amendment prohibits "forcing labor" on a corporation. But its argument is so broad that it could also apply to emergency cleanup orders under the federal Safe Drinking Water Act. Companies facing these orders, like a drilling company accused of contaminating Texas groundwater, sometimes resist these orders. Giving them a Thirteenth Amendment argument would only encourage recalcitrance.
Requiring a corporation to assist the government over its objection shouldn't be taken lightly. But it's hardly unprecedented. During and after World War II, the US government often requisitioned materials needed by the armed forces, such as silk for parachutes. Even today, the Selective Service Act gives the government the authority to order factories to manufacture materials for the military in time of need. The law reflects political compromises on everything from how to compensate companies to whether there should be a special role for steel. But it has never been understood as violating any "constitutional rights" of silk or steel manufacturers.
The real danger of these First, Fifth and Thirteenth Amendment arguments is that constitutional theories usually escape the confines of their original cases. The historical origins of corporate personhood trace back to a case about railroad taxes. Citizens United itself began as a case about a nonprofit making a documentary for video on demand, and wound up creating a new corporate right to spend unlimited amounts of money to influence elections.
None of this is to say that Apple shouldn't win in this particular case. It might well be right about the extent of the All Writs Act, and there are other arguments that could support its position, too. But expanding corporate personhood could lead us into far more perilous territory than Apple reveals.
Author: Ron Fein