David R. Henderson  

Sheri Pym Favors Involuntary Servitude

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Apple's reasonable technical assistance shall accomplish the following three important functions: (1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.

Apple's reasonable technical assistance may include, but is not limited to: providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File ("SIF") that can be loaded onto the SUBJECT DEVICE. The SIF will load and run from Random Access Memory and will not modify the iOS on the actual phone, the user data partition or system partition on the device's flash memory. The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE. The SIF will be loaded via Device Firmware Upgrade ("DFU") mode, recovery mode, or other applicable mode available to the FBI. Once active on the SUBJECT DEVICE, the SIF will accomplish the three functions specified in paragraph 2. The SIF will be loaded on the SUBJECT DEVICE at either a government facility, or alternatively, at an Apple facility; if the latter, Apple shall provide the government with remote access to the SUBJECT DEVICE through a computer allowing the government to conduct passcode recovery analysis.

If Apple determines that it can achieve the three functions stated above in paragraph 2, as well as the functionality set forth in paragraph 3, using an alternate technological means from that recommended by the government, and the government concurs, Apple may comply with this Order in that way.


This is from an order by U.S. Magistrate Judge Sheri Pym.

Ms. Pym has ordered Apple to use its own resources, uncompensated, to help the federal government access the contents of a cell phone used by one of the San Bernardino shooters. Did Apple shoot the people? No. What did Apple do? It produced an "insanely great" (the term used by the late Steve Jobs for an earlier Apple product) iPhone that has an important feature: other people cannot easily break into it.

Many commentators have focused on how dangerous it could be for privacy for the rest of us iPhone users if Judge Pym gets her way and Apple succeeds with software to break the privacy feature. Does anyone believe that the feds would stop there and not reverse engineer?

But that commentary misses an important point: even if Judge Pym's solution works and works only on the particular iPhone, she is trying to force Apple into involuntary servitude. We have an Amendment to the Constitution that bans her action. Will a higher court have the guts to enforce it?


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CATEGORIES: Labor Market , Regulation




COMMENTS (34 to date)
Handle writes:

SCOTUS held in Butler (1916) that involuntary servitude does not include "enforcement of those duties which individuals owe to the state." The 13th Amendment does not impair the constitutional legality of government actions such as military conscription, or judicial injunctions to include jury duty and the frequently burdensome and uncompensated obligation to comply with subpoenas, discovery requests, or warrants.

This particular case in only interesting because Apple claims it specifically designed the phone to be unbreakable by them or anyone else at almost any feasible cost. But not because of issues related to involuntary servitude.

Tom writes:

Upon reading this, I was confident that you were wrong. Surely the 13th amendment applies only to entities other than the Federal Government. Otherwise, how could the Feds compel jury duty, military service, testimony in a trial, even the hours to fill out tax forms. So, to get the exact wording for my rebuttal, I went to the text of the 13th amendment. Here is what it says:
"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."
YOU ARE RIGHT, but only in fact, not practice.
We have come far from the idea, embodied in the first 10 amendments, that The Constitution exists to LIMIT the powers granted to government. Now we just assume that the government has unlimited power except where explicitly circumscribed by name.

Jesse C writes:

My guess is that Scalia would have been the most dependable SCOTUS opinion against this ruling.

Also, this whole thing makes me wonder about the legality of really strong encryption. While Apple may have made something that's virtually unbreakable security, they probably can work around it if they really want to. But what if you built a technology that had provable security - i.e., no back doors are possible? This is almost certainly possible, if not already done. Should that be illegal now, or is it only forced on Apple because it's plausible.

Salem writes:

I'm reluctant to disagree with Prof. Henderson, but I fear this is a case of Homer nodding.

Involuntary servitude implies that one or more people is being forced to do a particular thing. That is not the case here. If the government forces me to work in a coal mine, that's involuntary servitude. If the government requires me to give it 16 tonnes of coal, that's a tax (or perhaps a taking). It may be unjust, but it's not involuntary servitude.

No developer or engineer is being forced to carry out any work as a result of this order - they can refuse, or quit, and will not be in breach of this order if they do so. Indeed, it's not even true if we were to speak more metaphorically about Apple itself being subject to involuntary servitude - if, for example, they were to accomplish the same via independent contractors, that would be quite acceptable according to the terms of the order.

Indeed, this is why involuntary servitude is so particularly damaging - it prevents people from finding alternative ways to meet the obligation. It may be much more efficient for me to do other work and buy the coal to hand over, than to mine them myself. This was a key part of the argument of Adam Smith against forced labour, and indeed of Milton Friedman against the draft.

What's really going on here is the government is commandeering Apple's resources. From that perspective, the Amendment implicated isn't the 13th, it's the 5th - but as this is a public use, and Apple is getting compensated, the feds are in the clear. So I'm afraid this just boils down to the boring old 4th Amendment.

David R. Henderson writes:

@Handle,
We’re not on the same wave length. I’m discussing what the Constitution says. You’re discussing what the Supreme Court says.

Eric Hanneken writes:

Could the FBI get around this objection by obtaining a court order for iOS' source code?

Jesse C: As is often the case, the user's password is the weak point in the iPhone's security. Assuming the dead criminals used the default 4-digit configuration, there are only 10,000 possibilities for the FBI to try. Apple mitigated the vulnerability by programming iOS to insert an increasing delay between password failures, and to erase the user's data after x failures. The judge is now ordering Apple to produce a version of iOS without those safeguards.

Capt. J Parker writes:

@Handle,
Thank you for the info on SCOTUS rulings on the meaning of "servitude" under the 13th amendment. I disagree with you that the Apple case in only interesting because of Apple's claim that i Phone security was designed to be unbreakable. The case is interesting because the government seems to be saying that individuals may "owe the state" objects that do not yet exist and can order individuals to create such objects without regard to the expense or abrogation of property rights involved.

If government taxes you 25% of our wheat harvest and you pay it you might be considered by some as a responsible citizen in a free society. But when government can order you to plant your field with corn because it requires 200 bushels, you are neither a landowner nor a free man.

Capt. J Parker writes:

Salem, you said:

Involuntary servitude implies that one or more people is being forced to do a particular thing. That is not the case here. If the government forces me to work in a coal mine, that's involuntary servitude. If the government requires me to give it 16 tonnes of coal, that's a tax (or perhaps a taking). It may be unjust, but it's not involuntary servitude.

So, to make this relevant to the Apple case: Apple has never mined coal and it has never intended to mine coal. Apple mines salt. Apple does not know if it could mine coal even if it wanted to. And Apple believes mining coal will contaminate the salt it has already mined. Since Apple has never mined coal it does not have the coal that the government is demanding. Yet the government is saying: "Take your miners, your picks and your shovels and mine us some coal" That's involuntary servitude.

Handle writes:

@David R. Henderson,

I see your point, however, it's not always easy to interpret the constitution on one's own. After all, no one thought that the prohibition on involuntary servitude in the 13th Amendment banned jury duty or conscription at the time of its ratification. Why should we think differently?

@Capt. J Parker:

We can easily distinguish between judicial orders related to the evidence gathering and production process, and every other kind of command or order of specific performance related that has as its primary purpose the confiscation of the economic value of some personal service.

Because this distinction is easy to delineate and police (i.e. by higher courts), we have a logically limiting principle that establishes a clear bright line between legitimate and illegitimate injunctions and so we need not worry about slippery slope problems that could encompass every type of activity.

Capt. J Parker writes:

@Handle, You said:

We can easily distinguish between judicial orders related to the evidence gathering and production process, and every other kind of command or order of specific performance related that has as its primary purpose the confiscation of the economic value of some personal service.

So, what evidence has Apple been asked to produce? More like FBI finds an i Phone with hieroglyphics on it at a murder scene and then gets a court to order saying Apple must produce a rosetta stone.

David R. Henderson writes:

@Capt. J Parker,
So, what evidence has Apple been asked to produce? More like FBI finds an i Phone with hieroglyphics on it at a murder scene and then gets a court to order saying Apple must produce a rosetta stone.
I think that’s a fair statement of the issue. And producing the rosetta stone could well cost millions of dollars.

John Hayes writes:

@Handle

The difference between this order and conscription is conscription happens by law. If there was an existing law that required all creators of data storing devices to produce back-doors for the products, then the request would be legal, but there is no such law.

If Apple complies, I wouldn't be surprised if they were subject to civil lawsuit, as there's probably a motive to mount a defense.

James writes:

Handle:

At 4:24 you wrote "Because this distinction is easy to delineate and police...we need not worry about slippery slope problems that could encompass every type of activity."

Contrary to your assertion, the former clause does not imply the latter. Governments have descended slippery slopes many times in the past, even while there were clear distinctions and judicial bereauracies that could have easily policed the problem. As a trivial example, many governments have imprisoned people for publishing newspaper articles. The distinction between imprisoning people and leaving them alone is as clear as any and yet this clear distinction has not been sufficient to prevent governments from descending that slope.

More worrying is the way the legal system in the US deals with officials that behave in a way that is unconstitutional or otherwise illegal. If Pym's demand is unconstitutional or illegal, Apple can appeal but still has to comply initially while seeking redress from a higher court. If a higher court rules against Pym's demand, Pym will likely face no penalty and certainly will not face any penalty comaparable to the cost that Apple must bear in order to comply with Pym's demand. From Pym's point of view, by making these kinds of demands, there are two plausible outcomes: Either she'll get what she wants until some other court says "no," at which point she'll be no worse off than before, or she'll get what she wants, full stop.

Scott Wallis writes:

How does a judge have authority to force an individual, or company like Apple, to create Intellectual Property? And, further still, to use that IP to pierce its own IP? For Apple, piercing its own IP could be catastrophic to its own business, and could further damage other businesses that rely on certain encrypted technology to conduct significant transactions on a daily basis, i.e. banking, trading, air traffic control, etc. The real slippery slope would be if Apple complied with the court's order and unleashed such a code breaking formula into our nation's marketplace. Scary stuff. Bad decision. Void order. And, one of the worst cases of judicial overreach I've seen.

Thomas B writes:

Let me answer your question directly.

No. No court will EVER enforce the 13th against the Federal Government.

D F Linton writes:

This is not involuntary servitude, not least because Apple is a corporation not a human with inalienable rights. Instead it is a clear taking of private property for public purposes.

This is not an order to produce an existing thing, but instead it is an order to create a new thing and hand it over to the FBI without compensation.

If this can be done done, then, if some agency wants its walls painted, they can simply serve an All Writs warrant on the local painter.

Phil writes:
@Handle, We’re not on the same wave length. I’m discussing what the Constitution says. You’re discussing what the Supreme Court says.

That's a red herring, David. Whose interpretation of the Constitution is relevant? In Marbury v. Madison it was established that interpretation of the law is the province of the judicial branch, ultimately determined by the Supreme Court.

Phil writes:

It is also not servitude if Apple is paid for their efforts.

If the FBI had a warrant for the contents of a safe and the only person who knew the combination was dead, they would hire a safecracker, not compel a safecracker to do the work for free. Similarly, Apple would be paid for their efforts.

Capt. J Parker writes:

@Phil, you said:

It is also not servitude if Apple is paid for their efforts.

A slave may be paid food, shelter and clothing necessary to keep him alive and productive yet, he is still a slave. For there to be no involuntary servitude there must be voluntary exchange. One party offering payment with no ability of the other party to refuse the first party's terms is still involuntary servitude.

In the apple case FBI is free to hire any safecracker it can find willing to work for the pay they offer. Instead, FBI has gone to the safe manufacturer and said: Invent some new way to open this safe. The safe manufacturer has said: We decline, at any price, we believe our safe to be unopenable if you don't know the combination unless you are willing to destroy the contents. Inventing the method you desire will put the valuables of all our customers at risk. And now the the courts say: Apple, whether you voluntary agree or not you will perform the tasks we require of you.

David R. Henderson writes:

@Phil,
That's a red herring, David. Whose interpretation of the Constitution is relevant? In Marbury v. Madison it was established that interpretation of the law is the province of the judicial branch, ultimately determined by the Supreme Court.
Not a good argument, Phil. I’ll say why in a minute. You would have been on stronger ground making the argument that Handle made here.
Now to why it’s not a good argument:
1. You say “it was established” without saying by whom. As you well know, the entity that “established” that the judicial branch is the ultimate arbiter is--the judicial branch. See a problem here?
2. I’m making the basic claim that we can read. Now, Handle above has convinced me that I overstated and that there are some interpretation issues here. But take the parts of the Constitution that admit of no interpretation, such as the one that says the President must be at least 35 years old. If the Supremes chose to ignore this and let a 34-year old take office, would you take their “interpretation” over the clear wording.

DWAnderson writes:

The government's demand here may well be more protective of privacy interests than alternatives that they would be on firmer legal footing to request.

There is an excellent discussion of the technical aspects of Apple security here

Based on that information, the government could likely subpoena the key that allows its own firmware to run on the iPhone in question and then design its own version that allowed it to get access to iPhones. That would actually be more of a threat to privacy than the one-off solution that the government is asking for here. That doesn't make what the government has asked for here ok, just that it is better than the alternatives that it has a better legal basis for requesting.

Further, note that the root of the real "problem" here is the fact that people secure their phones with 4-6 digit numeric passcodes that are easy to crack if you have the opportunity. (Apple makes a valiant attempt to prevent that opportunity, but there is only so much they can do.) That is probably fine for most applications where secrecy is less important than convenience. This does mean, however that the truly security conscious will start using pass phrases to secure their mobile devices rendering this entire discussion moot.

[incomplete link html fixed--Econlib Ed.]

Glenn writes:

This post is silly. The state can compel you to do all kinds of things you'd rather not, and may do so without offering any kind of compensation. In this case, though, my understanding is that Apple would be compensated.

Consider compelling a property owner to allow investigators access to a locked room as part of a law investigation into criminal conduct thought to have occurred in that room. Consider further that if the keys had been lost or misplaced, the state could hire someone to break or otherwise bypass the lock, and no one would consider this a grave risk the privacy and security of others.

This is no different. If Apple can provide access reasonably and without great cost - either to Apple or its users - then it can be compelled to do so, both legally and in my opinion quite reasonably. The FBI clearly has an interest in knowing how the phones were used. If Apple's position is that it either cannot break the encryption, or cannot do so without incurring great cost and/or risk to its users, it can make this claim before the courts and a judge will consider it, fairly and impartially.

Were I the hearing judge, however, I'd be highly skeptical. Apple can probably break this lock without breaking them all. The burden is on them to prove the extraordinary claim that this is not the case. If they can, the judge will lift the order. This is not the judicial Armageddon it has been portrayed as.

Ron writes:

The FBI is trying to launder slavery through Tim Cook onto his engineers, the same way that plantation owners laundered slavery through the head slave onto all the other slaves. The crime of slavery was not committed by the head slave, it was, and is again in the instance of Apple, being committed by the attempting slaveowner, the FBI, who want to be able to launder slavery through owners of restaurants so that chefs and other restaurant employees can cook them a free lunch. The FBi and and other participants in the attempted enslavement of Tim Cook and his employees should be arrested immediately for treason for attempting to overthrow the emancipation proclamation.

Ron writes:

And do restaurant owners cook people a free lunch? Sure, but doing so because they are being threatened is different, Apple is being threatened to comply in this instance, the same way the head slave would be threatened by the slaveowner to disseminate the orders of the day to the other slaves. The government isn't saying the engineers must act or quit, they are laundering that slavery through Tim Cook, and that attempted enslavement is a crime.

Birel writes:

How is this different than a court ordering a bank to open a lock box from the perspective of the courts powers? Happens regularly as long as it meets necessarily high s&s requirements, no?

There is also the small inconvenience that this has the consent of the owner.

There is a bigger issue, yes. But there is too much news seeking than actually solving the problem. Apple has to make an issue out of this for business reasons...and the world takes the bait and now it's a hair ball of issues, otherwise known as news making.

Robert Evans writes:

@D F Linton
"If this can be done done, then, if some agency wants its walls painted, they can simply serve an All Writs warrant on the local painter."

It's more equivalent to the agency demanding the painter who painted their walls to remove said paint.

The government is demanding that the company which created a product help them defeat it. Whether they would have any standing to demand the same of an unaffiliated company is another question entirely.

Robert Evans writes:

@ David R. Henderson writes:
"such as the one that says the President must be at least 35 years old. If the Supremes chose to ignore this and let a 34-year old take office, would you take their “interpretation” over the clear wording."

Actually this does admit to a lot of interpretation given the ways our calendars work, and the many definitions of a year.

What if a person is, calendar wise, one day short of their 35th birthday, but has lived through a statistically greater number of leap-days than normal?

A) Is it the polling date or the swearing in date that counts?
B) Is "35 years old" defined as "born on this date 35 years ago", in which case a person could turn 35 years old after 12783 or 12784 days, depending on whether they were born just before or just after a leap year.
C) Is it defined at the *time* of birth, in which case the timing of the swearing in ceremony, or poll closing/opening may be pertinent, or by the general day?
C1) Is it defined as per the Julian calendar as 365.25 days time 35 years (12783.75 days long)?
C2) Gregorian 365.2425 average year length (12783.4875 days long)?
C3) Tropical (year 2000 length based - 12783.47665 days long), or should this be based on the length of the year 1787 or 1790, as an originalist might say?
D) Do premature births, which would not have been viable at the founding, count as the start date? Or would the clock start ticking only once they are removed from the incubator?
E) Etcetera ad nauseam.

This has never come up because we have never had a case for it to come up. It doesn't mean the Constitution is textually clear.

David R. Henderson writes:

@Robert Evans,
Your ability to come up with tough cases should not distract us from my point: if someone turned, say, 33 on Inauguration Day, none of your cases would apply.
Which means that I would still love to hear Phil’s thoughts on this.

L. D. Coate writes:

It seems like the basic premise of this article is invalid:

"The judge told Apple to provide an estimate of its cost to comply with her order, suggesting that the government will be expected to pay for the work."

This doesn't not mean that I support Judge Pyms' order, I don't. I don't believe this situation justifies jeopardizing the security of iPhone users and I also don't believe the government should be able to order you to do work you don't want to do unless you have broken some law (including labor laws) or been negligent - to me that is involuntary servitude whether or not you receive some compensation.

Phil writes:

David, I admit that Handle's argument was more precise than mine and I blame it on my desire to be concise. You raise the question of statutory interpretation -- a necessary evil that has vexed the nation from its founding and is a key consideration in the nomination and confirmation of justices.

Treatises have been written on the canons of interpretation.

But the basic starting point is the plain meaning of the language. A court that says a 34 year old could be president is making a clear error when the text says 35. But Robert raises a valid point that - in some circumstances - even a number is not clear enough. In contrast, phrases such as "involuntary servitude" necessarily require interpretation.

Because legal disputes need to eventually be resolved, somebody or some body must have the final say. In our society, that would be the Supreme Court. There is precious little, if anything, in the constitution that is clearly understood by everyone at all times under all circumstances. As such, the document is not self-evident, but requires interpretation.

David R. Henderson writes:

@Phil,
Fair enough.

Robert writes:

Forget the pointless semantics and agenda driven rhetoric that's all smoke and mirrors anyway.
The government made their choice when they declared that corporations were people. Now they should be forced to swallow that jagged little pill.
We all know the US government is full of people that employ subversive and deceitful tactics.
So if they illegally get their way and force apple to comply somehow. Who's going to monitor and regulate the use of this software? Who's going to make sure that tech tranfers won't be made to foreign interests? That everyone should know the government is infamous for doing regularly.
Nobody should have to be told or reminded how abusive and overreaching this tyrannical system has become. The party lines are superficial. When votes to double the military budget come around, there is swift clandestine unanimous approval, but when it comes to issues that protect and provide constitutional rights for the citizens, there are threats of shutdowns and combative politics like a sideshow at a circus. Which it is.
They have the tech to do it themselves, but obviously need to set a precedent to further strip even more civil liberties from the population.
When is enough, enough?
San Bernardino was a poorly staged and sloppily coordinated false flag psyop that's being milked for everything it's worth. If they do gain access to the phantom phone, they will almost assuredly whip up a frenzy of propaganda falsely linking Iran to the network of lies to justify the drums of war being sounded against them.
Nevermind that Iran caught those navy ships redhanded transporting an "isis" paid private non muslim military contractor from Kuwait to Syria that forced the administration to lift the santions ahead of the agreed schedule in return for Iran staying silent about it. Or how Israel has been making transactions with North Korea paid in gold for some Hillary Clinton style deny culpability to the bitter end reason.
Incremental slavery slowly introducing an amalgam of fascist-communist policies.
In the end it's the people vs an out of control government. Great leap forward part 2.

Robert Evans writes:

@David R. Henderson writes:

"@Robert Evans,
Your ability to come up with tough cases should not distract us from my point: if someone turned, say, 33 on Inauguration Day, none of your cases would apply. Which means that I would still love to hear Phil’s thoughts on this."

I tend to agree with you, and appreciate Phil's response.

When it comes to numbers, years are close to absolute, but most numbers in the law aren't nearly as absolute (especially those dealing with inflatable money, or even years as estimates of lifespans or ability to support oneself through labor).

Arguing further on the minimum age of the President:

An absurdist could argue that 35 years is 5/3rds of the Constitutionally instantiated voting age of 21 years, and as such 35 years should now be interpreted as 30 years (5/3 * 18 years).

Somewhat less absurdly one could argue that the intent of 35 years, combined with the 14 years of residency (21 year voting age + 14 year residency = 35 years), is that the President shall have spent a certain minimum time as an actual voter before attaining the presidency. Which would argue for 32 years (18 years voting age + 14 years).

Neither the 26th amendment nor the Constitution itself address these reasonings, so it's far more reasonable to assume that 35 years is supposed to stand as 35 years period (plus or minus a few days or months, depending on when the clock starts). But, since we do not know the original intent of the 35 years clause, you can only argue this if you also argue that original intent should not be the basis of interpretation of this part of the Constitution.

Michael Kochin writes:

Obeying the law is not servitude.
http://boundary2.org/2016/02/18/liberty-an-iphone-and-the-refusal-to-think-politically/

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