Constitutional Rights Under Assault in Apple Encryption Fight

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Constitutional Rights Under Assault in Apple Encryption Fight

Published in Daily Record March 29, 2016

There are plenty of issues in the dispute between the Justice Department and Apple over the encryption of iPhones. But the two I personally find of greatest concern have to do with human dignity: that of cellphone users, and that of programmers who may at some point be subject to a direct order from some court to attempt to build an override for Apple’s encryption.[1] As this goes to press, DOJ says it may be able to unlock the phone without Apple’s help, mooting out this dispute. If so, though, this merely postpones the moment when the encryption improves, the government insists on help, and these two issues come back to life.

Human Dignity = Something

Cellphone users (like everyone else, if there is in fact anyone left who does not use a cellphone) cannot be forced to give testimony against themselves. The Fifth Amendment’s protection against forced self-incrimination rests squarely upon an understanding there are compulsions to which, as a matter of respect for human dignity, no one should be subjected.[2] True, that respect is of quite limited scope. It outweighs the rule that the law has a right to every person’s testimony only where speaking would actually threaten to incriminate the speaker. And even that exception can be overridden if the state grants immunity before the testimony is compelled. So there is not that much left to the right to silence and the dignity it protects. But it is something.

And that something is not without consequence. I think it’s safe to predict that if a machine existed, as it may sometime do, that could search our minds and read them, the courts would hold that the Fifth Amendment prevents our minds from being searched that way for the purpose of incriminating us. How different are cellphones, though?

Cellphones have become something like a memory and consciousness for most of us. We delegate to our handheld silicon familiars the tasks of remembering locating information for all our social connections, maintaining a history of our own physical locations (perhaps 24/7), carrying on most of our communications, and keeping track of our agendas, our secrets, our interests and our fantasies. And, yes, our misdeeds, the very thing a privilege against forced disclosure exists to shield us from exposure to liability for, be those misdeeds ever so evil and ever so threatening to national security.

Our Phones, Ourselves

Now, can we doubt that that distinction between our minds and our phones will only keep shrinking for the foreseeable future? Today our phones rest in the palms of our hands, or are worn with an awkward extension around the ear, or as a watch. It is a near-certainty that when they inevitably grow smaller, they will be implanted. They will become, like our brains, in-body compilers of our entire life’s story, including the parts of the story we have a constitutional right not to disclose.

Assuming that the equivalency of our cellphones and ourselves is near-complete now, and that it will come even fuller soon, are we willing to allow phones to be treated as if they were separate from ourselves when it comes to our limited but precious privilege against self-incrimination? The DOJ’s paradigm is that cellphones are like documents or things external to ourselves, things which may lawfully be seized and searched, given probable cause, even to incriminate us. But is that really different from saying that one’s brain could be seized and searched? Back in the days when “telephone” meant a communications device that lived on a desk, yes, it was different. Now, when “phone” means a computer into which we pour so much of ourselves (and which happens to include voice communications among its myriad of functions), the difference grows harder and harder to maintain with a straight face.

That near-equivalence between our phones and our minds also means that when, as in the California case where Apple and DOJ are facing off, the owner of the phone dies, but the owner’s near-prosthetic memory and personality live on, there is a strong argument to be made that that memory and  personality should be accorded the same respect, and that its freedom from self-incriminatory compulsion should be as great as the personality of the owner when he was alive. The owner cannot be convicted or sentenced, but, even after he has gone to face a higher Judge, he could still be incriminated in this world by its contents – and lack the ability to defend himself. The protection should therefore live on.[3] (And before you react that lending machines their owners’ Fifth Amendment rights is an extreme view, remember that a phone at least is corporeal; we live in a country where non-corporeal corporations have the same First Amendment rights as humans.)

Involuntary Servitude

Turning from the human dignity of putative bad guys, living and dead, to that of putative good guys, software engineers, what are we to make of orders conscripting their employer to devise hacks for its own security protections? We know that this ultimately translates to an order compelling the individual engineers to perform the hack. In both instances, that of the employer corporation with, as we know, constitutional rights and that of the individual engineer, we are forced to wonder how such an order squares with the Thirteenth Amendment, which outlawed involuntary servitude “within the United States,” except as a punishment for crime. In protecting the security of iPhones with encryption, neither Apple nor its engineers committed any crime. Nor have they been convicted of any crime. Nor are they being punished. Yet DOJ is seeking to compel them to undertake labor they had not agreed to perform and which could not be compelled even if they had agreed; it is well-established that even if one has contracted to perform personal services, the Thirteenth Amendment prohibits a court to order specific performance of the contract.

DOJ claims that it has the authority under the All Writs Act, which provides that courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”[4] Even assuming a court order to software engineers to drop whatever else they were doing and help disable a key feature of their employer’s product were “necessary and appropriate,” how, after the passage of the Thirteenth Amendment, could such an order be “agreeable to the usages and principles of law”? One thing we know full well is that involuntary servitude was once enforced under the usages and principles of law in many states, under the guises of slavery, indenture, and peonage. But we know too that then the Thirteenth Amendment came along and destroyed them all. Involuntary servitude no longer conforms to the usages and principles of law. Notwithstanding, DOJ thinks there is still an unwritten exception in the Thirteenth Amendment for involuntary servitude to help courts fight terrorism.

That’s craziness.[5] There are few rights as unconditional as those established by the Thirteenth Amendment.

The Cost, Worth It

In so saying, I recognize that respecting the limits we have placed on ourselves comes with a cost, when we are combating terrorism. But our country and most of our countrymen will survive terrorism. We will surely all lose far more if the Fifth and Thirteenth Amendments are damaged in that fight. The wounds to the self-incrimination privilege and the bar to involuntary servitude would no doubt survive long after Islamic terrorism is gone.

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[1]. That very relief was compelled by an order in In re An Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, 2016 U.S. Dist. LEXIS 20543 (Feb. 16, 2016). At this writing, that order is subject to a motion to vacate. My expectation is that the matter will eventually make its way to the Supreme Court.

[2]. The writings of the Supreme Court, and for that matter of the European courts (which have arrived at the same result even though a right against forced self-incrimination is not set forth explicitly in the European Convention on Human Rights), are very confused and circular on this point. Yet I believe that respect for a defendant’s dignity is the gist of such expressions as this:

Our decisions under that Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i. e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.

Rogers v. Richmond, 365 U.S. 534, 540-41, 81 S. Ct. 735, 739 (1961). Or this, from the same case: “Despite such verification, [certain] confessions were found to be the product of constitutionally impermissible methods in their inducement. Since a defendant had been subjected to pressures to which, under our accusatorial system, an accused should not be subjected, we were constrained to find that the procedures leading to his conviction had failed to afford him that due process of law which the Fourteenth Amendment guarantees.” Id., 365 U.S. at 541, 81 S. Ct. at 740. As I say, circular. The involuntariness of the confessions makes the methods indecent, and the indecency makes the confessions involuntary. Yet common to both poles of the discourse is the sense that there are things to which a human should not be subjected, and with which the State must simply make do.

[3]. I acknowledge that I have made a somewhat contrary argument in an earlier piece about the survival of attorney-client privilege after the client’s death. See Vital and Inevitable: The Decay of Client Confidentiality (June 30, 2014). However, it makes a difference who is overriding the expectation of privacy. Given the Fifth Amendment, the government, particularly the prosecutorial organs of the government, should always have the weakest claim; true historians and those seeking to preserve the human experience for future generations have much stronger ones. I state my conclusion here; not the reasons for it.

[4]. 28 USC § 1651.

[5]. Apple’s counsel have not relied upon the 13th Amendment. See the memorandum filed by Apple’s lawyers contesting the order. Apple relies largely on the First Amendment and the Fifth Amendment. Nor did the U.S. District Court for the Eastern District of New York, in issuing an order to opposite effect. In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, No. 15-MC-1902 (JO), 2016 U.S. Dist. LEXIS 25555 (E.D.N.Y. Feb. 29, 2016). No doubt both Apple and the New York court have their reasons for not “going there.” But I believe that the 13th Amendment is a valid concern.

Copyright (c) Jack L. B. Gohn

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