Wednesday, April 06, 2016

On Involuntary Servitude:
“You’ll Do Something, Mr. Cook. . . . If You Don’t, We’ll Make You.”

The March 28 Time magazine cover story about Apple Inc.’s legal battle against the FBI and the lengthy interview with CEO Tim Cook are well worth the read.* So also is the earlier February 25 column on this case by Judge Andrew Napolitano.

There are several takeaways from the three pieces.

The FBI in February had ordered Apple to create new software to hack the encrypted iPhone of a dead terrorist. Apple contested the order, saying it would be a violation of civil liberties and that such software would put a master key in the hands of bad guys all over the world, including authoritarian governments. This, Cook says, is tantamount to banning encryption.

The case is now moot, because the FBI did what it should have done in the first place: it hired an independent firm to hack the phone, presumably achieved without creating new software. The order at the FBI’s request has been vacated, but the issues, including the possible future coercing of Apple and other tech firms, remain.

Tim Cook in the Time article and interview says that banning encryption means only the bad guys—such as terrorists—will have it, because encryption software is widely available beyond the borders of the United States. I doubt that Cook intended this, but he is making the same argument as the defenders of the Second Amendment: ban guns and only the bad guys will have them!

Cook says the court order amounted to a violation of the civil liberties of Apple’s customers, especially their right to privacy. Judge Andrew Napolitano made it an issue of due process, because Apple was not given proper notice, and, more significantly, a case of involuntary servitude.

Let’s take involuntary servitude first. The phrase comes from the Thirteenth Amendment to the US Constitution that outlaws slavery. The Supreme Court, however, has issued a number of rationalizations why a military draft and other forms of forced labor do not constitute servitude. The main excuse is that the amendment was passed specifically to apply to African slavery, not to other forms of forced labor. That is, all young, able-bodied men—and today, women—owe a duty, when so ordered, to perform work for their government and, if “necessary,” to go die for the old men (and women) in power in Washington.

The justices of the Supreme Court, not to mention legal experts and other intellectual leaders, both today and yesterday, have failed to understand that rights are absolute and universal. A freedom to take action, when not infringing anyone else’s freedoms, is a freedom to take action.

And slavery is slavery, as Judge Napolitano argued. Slave labor is precisely what Apple was asked to perform.

Indeed, the FBI vs. Apple case was an Atlas Shrugged moment on at least two counts. Several Apple engineers had stated that they would refuse to write such requested new software for the FBI, risking fines and imprisonment. Or quit. In effect, they were threatening to strike.

The working title of Ayn Rand’s novel was The Strike.

The case most amazingly was a Hank Rearden moment. I’m referring to the passage in the novel where the steel titan is ordered by James Taggart and his cronies to produce at a loss and therefore make the irrational work. When Rearden asks how he is supposed to accomplish that, Taggart responds, “Oh, you’ll do something.”

A major theme of the novel is that creativity and innovation do not work at the point of a gun, but that was what the FBI was asking and expecting Apple to do.

What our country needs more of today are business CEO’s with the integrity and courage of Mr. Cook—to stand up to their government.

In fact, this confrontation between the FBI and Apple would make an excellent business ethics case for future (or even current) executives to discuss.

The civil liberties issue that Cook talks about brings up the canard about privacy versus security. Cook wants to defend his customers’ privacy. The FBI and Washington don’t give a hoot.

When a crisis occurs, the politicians and bureaucrats scream security over privacy. Rights be damned. And the use of fear by the government usually succeeds in getting citizens to cough up their rights.

Cook points out that the government wanted Apple to create a master key and give up the privacy—which really means security and safety—of millions of people around the world in order to go after a “sliver” of bad guys.

Somehow the lawyers in Washington seem to have forgotten the training that taught them a most important principle of the free society, namely that it is better for a guilty person to go free—that would be Cook’s sliver of bad guys—than for an innocent one to be sent to jail.

Plus, as long as I am talking about involuntary servitude, this brings up the related Vietnam War era discussions of the prospects of an all-volunteer army. “There might not be enough volunteers,” the supporters of the draft yelped incredulously. Two answers were given, aside from the prickly issue of rights versus slavery: one, perhaps the war was not just and we shouldn’t be involved at all, or two, if the war is just and the country does not have enough volunteers, then the country deserves what is coming to it.

This last applies similarly to the FBI’s attempt to force Apple into involuntary servitude, for unjust means to a just end can never be moral. Coercing Apple to hack a dead terrorist’s phone to obtain information that might prevent the occurrence of a future event destroys the principle of justice and ethics.

If, however, in the name of justice the FBI refused to coerce Apple and, as consequence, failed to obtain such information, at the very least it could then stand tall and say that it upheld a cardinal principle of the free society.

The real—practical—issue here, though, is that the FBI (and government as a whole) needs to become proactive in creating better crossbows. In any weapons race, the bad guys will sooner or later obtain the latest crossbow, or encryption technology, which means the good guys must stay one step ahead of the bad. Apple has done, and is continuing to do, just that.

It is time for the government to do the same, instead of wasting money and resources trying the coerce Apple to correct the FBI’s own mistakes.

The FBI’s mistake was the order to reset the iPhone’s passcode, which resulted accidentally in the Bureau’s inability to access the phone’s information.

In the few weeks of this FBI standoff, Apple fortunately was not raided by gangs of armed, bulletproof vested SWAT teams. Apple is a high profile, well-liked firm and escaped—for now—such inexcusable tyranny.

Tennessee based Gibson Guitar a few years ago was not so fortunate.

After the SWAT teams left, Gibson CEO Henry Juszkiewicz, like Tim Cook, spoke up to defend his business. Never charged (for illegally importing wood from Madagascar and India), and, of course, no apologies given, Gibson was slapped with a fine and a gag order—to never again speak up to point out how unjust the US Justice Department is, which is to say: to never again attempt to defend itself.

*Dated March 17 in the digital versions.

Postscript. I cannot pretend to keep up with all the issues involved in this post’s encryption battle, but WhatsApp, the online messaging service, has just announced that it has encrypted all messages of its billion or so worldwide users. No one in the WhatsApp office can listen in to or hack what is being, or has been, said.

WhatsApp’s analogy to defend encryption is that what is now being done electronically has been done for centuries without the electronics, because it is just conversation that formerly was done at the water cooler or under an old oak tree. If the FBI wants the information that is being discussed, it either needs to subpoena the participants or send spies to the coolers and trees.

Spooks on the ground to gather intelligence. What a novel idea! It used to be done but, as I recall, budget cuts going back to the Clinton administration led to the post-9/11 hysteria about weapons of mass destruction in Iraq. The Bush administration had to rely on satellite photographs to verify information that should have been obtained with real people seeing with their own eyes.

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