Forced Labour In Big Tech: Is Exploitation An Ingredient In Your IPhone?

In a recent ruling, the US Court of Appeals for the District of Columbia dismissed a case against major tech companies, including Apple, Tesla, and Microsoft, filed by 16 miners alleging forced labour in cobalt mining. The court argued that the Trafficking Victims Protection Reauthorisation Act did not hold end users responsible for supplier conduct. While legally absolved, the tech giants face a lingering moral dilemma regarding the exploitation in the Democratic Republic of the Congo, raising questions about societal responsibility in the pursuit of technological progress.

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By Stephen L. Carter

We all rely on cobalt every time we rely on the lithium-ion batteries that power our phones or laptops or EVs. We don’t always allow ourselves to remember that by far the world’s greatest source of cobalt, both productive mines and known reserves, is the Democratic Republic of the Congo, which means, tragically, that the material is sometimes the product of child or forced labor. Nobody knows how much — the issue is debated — but nobody denies the problem.

Does that horrific truth mean Big Tech is liable for the torture and death of enslaved cobalt miners? This week, in , the US Court of Appeals for the District of Columbia said no.

The case arose under the Trafficking Victims Protection Reauthorization Act of 2008, known as the TVPRA. The plaintiffs were 16 miners (or estates of miners) who alleged that they’d been forced by local cobalt suppliers to work for little or no money in unsafe conditions. Much of the DRC’s cobalt is extracted by industrial operations, but a significant fraction comes from the labor of “artisanal” miners, who work in small groups. It is among the artisanals that the worst abuses occur.

Under the TVPRA, a defendant must compensate victims if it “knowingly benefits” due to its “participation in a venture” that violates the act — and among the violations is the use of forced labor. The plaintiff argued that Apple Inc., Tesla Inc., Microsoft Corporation and other corporate defendants derive profit from the exploitation of children and other forced laborers. The panel rejected the claim, on the ground that Congress did not intend the word “venture” to cover relationships that did not include “a common purpose, shared profits and risk, or control.” In other words, being a buyer does not make one a venturer with the seller.

TVPRA plaintiffs have had their successes, such as last year when a different federal appellate court permitted a lawsuit against Salesforce.com to go forward based on its close connection to its client Backpage, a website that ran sex-trafficking ads. But they’ve also had their failures, even when the underlying factual claims provoke outrage. Critics argue that court decisions have “eviscerated” the statute. The outcome in Doe v. Apple is unlikely to make them happier.

Nevertheless, the court reached the proper legal conclusion, for two important and interrelated reasons.

First, I share the court’s skepticism that the term “venture” indicts the entire supply line, from mineshaft to shipper to manufacturer to retailer, because next in line is the consumer. Would iPhone users and EV drivers also be liable? Second, if Congress indeed meant to impose liability on end users who profited from conduct the statute forbids, it should have conveyed the point with specificity. We should always know exactly what government requires or forbids. No gray areas, no unclear lines — laws that impose liability, whether civil or criminal, should be precise. The greater the potential punishment, the clearer the prohibition should be. A legislature unwilling or unable to carry that burden should do less legislating.

But that’s not the end of the matter. Even if the tech companies bear no legal responsibility, one can surely make an argument that they bear a degree of moral responsibility for using material sourced from a place where some unknown proportion of the mining companies engage in human exploitation.

True, there’s considerable debate about the real status of the DRC’s artisanal cobalt miners. Although most scholars agree that the fog enshrouding the small mining operations conceals considerable harm not only to the miners but to their communities, others argue that framing artisanal mining as exploitative helps large industrial producers crowd out the small-scale locals. Even Siddarth Kara’s painstaking and engrossing best-seller Cobalt Red: How the Blood of the Congo Powers Our Lives has been criticized for a supposed colonial outlook and White savior mindset.

Yet nobody suggests that forced labor doesn’t exist among the artisanal cobalt miners; that’s why Big Tech is so assiduous in trying to persuade us that their products don’t depend on it. The real argument isn’t about whether there’s exploitation in cobalt mining; it’s about how much exploitation there is.

Alas, we don’t know the answer. That’s why Kara, in Cobalt Red, is on the mark when he derides the claims by “corporations atop the cobalt chain” that there exists an “impervious wall” that separates industrial from artisanal cobalt production: “Such assertions are as meaningless as trying to claim that one can discriminate the water from different tributaries while standing at the mouth of the Congo River.”

Kara’s right, which helps explain why we’re reluctant to look at the issue of moral responsibility. Because if we’re serious, it won’t be enough to ask why Apple or Tesla don’t stop using cobalt. We’d have to ask why we ourselves are not prepared to stop using our phones or laptops.

Cobalt is essential to both the human present and the human future. Without highly efficient storage batteries, we’ll never put a serious dent in fossil fuel usage. The question nobody wants to discuss is how many lives we’re willing to sacrifice to get there.

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