Santa Clara University School of Law associate professor David Yosifon has written an opinion piece for the San Jose Mercury News about Apple’s fight with the FBI over a recent court order. The article, “Apple’s Tim Cook voicing corporate interest, not social conscience,” examines the factors motivating Apple in resisting the judicial order.
Apple is resisting a judicial order to build a software program that can unlock the San Bernardino terrorist suspect’s cellphone so the prosecutor can access its contents. Even if you think it is important to resist such a draconian judicial order, as I do, Apple’s resistance is not evidence that Apple has a social conscience. And it should not suggest that corporate decision-making can be counted on to play a responsible role in confronting the great policy questions of our day.
Apple is incorporated in California. California law requires corporate directors to “perform the duties of a director … in good faith, in a manner such director believes to be in the best interests of the corporation and its shareholders.”
Not “the corporation and American society,” not “the corporation and the international community” and not “the corporation, its workers and its consumers.” Directors have wide discretion to determine the best means to serve the shareholders. But they have no discretion to decide they will instead serve some other goal.