Your iPhone and EV were probably built on forced labour. Does this bother you?

WE ALL rely on cobalt every time we rely on the lithium-ion batteries that power our phones, laptops and electric vehicles (EVs). But we do not always allow ourselves to remember that the world’s greatest source of cobalt by far – in terms of number of productive mines and known reserves – is the Democratic Republic of the Congo (DRC).

This means, tragically, that the material is sometimes the product of child or forced labour. 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 Doe v Apple, the US Court of Appeals for the District of Columbia said no.

The case arose under the Trafficking Victims Protection Reauthorisation Act of 2008 (TVPRA). The plaintiffs were 16 miners (or estates of miners) who alleged that they were 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 labour of “artisanal” miners, who work in small groups. It is this group that takes the worst abuse.

Under the TVPRA, a defendant must compensate victims if it “knowingly benefits” due to its “participation in a venture” that violates the act. Among the violations is the use of forced labour.

The plaintiff argued that Apple, Tesla, Microsoft and other corporate defendants derive profit from the exploitation of children and other forced labourers.

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 have also had their failures, even when the underlying factual claims have provoked 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 scepticism that the term “venture” indicts the entire supply line – from mine shaft 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 that the statute forbids, it should have conveyed the point with specificity. We should always know exactly what the government requires or forbids.

No grey 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 is 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 also to their communities, others argue that framing artisanal mining as exploitative helps large industrial producers to crowd out small-scale locals.

Even Siddarth Kara’s painstaking and engrossing bestseller, Cobalt Red: How the Blood of the Congo Powers Our Lives, has been criticised for a supposed colonial outlook and “white saviour” mindset.

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

Alas, we do not know the answer. That is 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,” he writes.

He is right, which helps explain why we are reluctant to look at the issue of moral responsibility. Because if we are serious, it would not be enough to ask why Apple or Tesla do not stop using cobalt. We would 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.