Ron Fein In U.S. News & Report: How Apple Could Best the FBI

Today, Free Speech For People’s Legal Director Ron Fein explains to the U.S. News & Report how a 40-year old case about Oklahoma’s drinking age may offer a convincing line of argument for the tech giant, Apple, in an ongoing dispute with the U.S. Government over providing access to its consumers’ phone data.

Apple recently refused to grant access to the phone data of its customers, and announced it would fight a court order requiring it to develop a custom version of its iOS operating system to aid the FBI in hacking the iPhone of one of the terrorists in last year’s San Bernardino shooting.

While it is unclear what exact legal claims Apple will make, there is speculation that it will claim the Court’s order violates the constitution.  Whether Apple will claim corporate constitutional rights is unknown, but it’s a likely scenario. Ron Fein unpacks this argument below:

“Apple Inc. is a corporation – an artificial legal entity that exists because of a charter granted under the laws of California. Corporations are not people, and they shouldn’t be treated as if they have constitutional rights like living, breathing people.

But that doesn’t mean Apple doesn’t have a good case. It just needs to rely on an ancient legal doctrine with a Latin name and a 40-year-old precedent involving beer sales. Let’s step back and consider Apple’s possible constitutional arguments.

First, some suggest that forcing Apple to write new software is unconstitutional compelled speech. Many laws require corporations to produce written reports that they’d rather not produce, whether it’s mandatory disclosures to stock investors or pollution discharge reports under the Clean Water Act. But these aren’t First Amendment violations. The First Amendment’s purpose is to protect democratic self-government and expressive autonomy, and neither is implicated here. To be sure, in recent years corporations have managed to persuade courts that everything from milk-labeling requirements to securities disclosure laws are unconstitutional compelled speech. But a court order requiring a software corporation to develop a slightly different version of its software as part of a criminal investigation isn’t much different from a subpoena ordering a witness to testify, and that power of the courts doesn’t infringe freedom of speech.

Second, the American Civil Liberties Union has suggested that Apple may also have a claim under the Fifth Amendment’s due process clause, which says that no “person” can be deprived of “liberty” without “due process of law.” Even for those who claim that the word “person” means “corporation,” this is a weak argument. Corporations don’t have “liberty,” and the Supreme Court has acknowledged that the due process clause protects “the liberty of natural, not artificial, persons.” As for “due process of law,” the FBI went to a judge and got a court order, which Apple is now challenging in court. How much more legal process does Apple think it’s due?

 

By process of elimination, Fein points to the Fourth Amendment as a potential claim for Apple, explaining that they might argue forcing it to break encryption of its data may result in an “unreasonable” search.

But let’s unpack the Fourth Amendment argument. The question here is whose Fourth Amendment rights are at stake. Apple’s claim as a corporation is very weak. The Fourth Amendment applies, in its own words, to “the people.” And as the Supreme Court has recognized, “corporations can claim no equality with individuals in the enjoyment of a right to privacy. They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities.” We shouldn’t conflate the privacy of “the people” in “their persons, houses, papers, and effects” with the business operations of a multinational corporation.

We know Apple is a corporation, it’s an entirely legal entity, but it’s customers do qualify for the protections of the Constitution. The case could set a new precedent,  but it could also put the privacy rights of Apple customers at stakes.

When corporations claim constitutional rights, ask whether the rights of any actual people are at stake. Treating the artificial legal entity itself as having constitutional rights leads to bizarre results, like the theory that a publicly traded corporation has a constitutional right not to disclose information about its own products to investors.

In the full text, Fein references a 40-year old case about Oklahoma’s drinking age and a beer vendor,  explaining that a corporation may have grounds to make a constitutional argument on behalf of its customers, not its imagined corporate rights. Fein concludes,  “letting Apple make legal arguments based on its customers’ rights is far sounder than indulging the fiction that a multinational corporation is a person with inalienable rights under our Constitution.”

 

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