Criminal and Constitutional Rights of Corporations: Apple’s Example

In an unprecedented case, Apple, the ever-popular electronics company, has argued that the FBI is violating its constitutional First amendment rights. In a 36-page legal brief submitted in the District Court: Central District of California, Apple made its first formal rebuttal to a court order ordering Apple to code a software that would make it easier for the government to crack open the phone of the San Bernardino gunman, Syed Farook.

Apple’s legal team, led by George W. Bush’s former solicitor general, Theodore Olson, claims that computer code is speech, which cannot be compelled. Compelling Apple to write a code it does not want to violates the first amendment. Moreover, Apple has accused the federal government of being indifferent to privacy concerns and being dishonest in how legally valid the request was.

Lastly, Apple has claimed that the order violates its fifth amendment due process protections by leaning too heavily on the archaic 1789 All Writs Act. Essentially, the Act allows courts to issue whatever legal orders they need to issue in order to do their jobs. See 28 USC §1651.  Essentially, the company claims that forcing them to write a special code for the FBI is burdensome, illegal, and unfair.

If Corporations Have Rights, When Can They Be Held Criminally Liable?

While an interesting case, Apple’s controversy is a reminder that corporations are still considered “persons” under the constitution, and therefore have criminal and constitutional rights as individual people. This means that while corporations may call upon the constitution to protect themselves, they are still criminally liable for the federal crimes their employees or agents commit in their interests. This is true for regulatory offenses, economic offenses such as violations of securities laws, and criminal offenses in the cases of white collar crime.

Decisions whether to prosecute a corporation rests with the Justice Department (they have prosecutorial discretion). However, a huge difference is that corporations cannot be jailed.  Specific employees may be, but the corporation as a whole can only be criminally fined.  In federal law, corporate criminal liability is ordinarily confined to offenses (a) committed by the corporation’s officers, employees, or agents; (b) within the scope of their employment; and (c) at least in part for the benefit of the corporation.

Liability in California

In California, corporations that violate a criminal statute may face fines both under state and federal statutes (Cal. Penal Code § 672) and be ordered to make financial restitution to any victim of the criminal conduct. See 18 U.S.C. § 3663; Cal. Penal Code § 1202.4. Additionally, criminal conviction may lead to “debarment,” where a company is precluded from participating in certain in federal and state-funded programs.

San Diego Criminal Law and Constitutional Law Attorney

The Law Offices of David M. Boertje handles all misdemeanor and felony cases, including white collar crimes. If you are on the hook for something your employees or agents did, contact the Law offices of David Boertje today. We will do our best to minimize any potential penalties and save your business.