Federal Magistrate Orders Apple To Help FBI Hack Its Own Phones . . . Apple Refuses

apple-logo200px-us-fbi-sealsvgApple has decided to fight an unprecedented and highly controversial order by U.S. Magistrate Judge Sheri Pym that the company has to assist the government in breaking into one of its encrypted phones. Apple says that it does not have the technology and does not want to be part of such an effort to create a privacy stripping tool for the FBI. Pym seems to believe that she can order companies to become unwilling participants in surveillance research and development. I fail to see her legal basis for such an extraordinary order against a private company.

CEO Tim Cook said the order by U.S. Magistrate Judge Sheri Pym “has implications far beyond the legal case at hand”. He said that the company cooperated with the FBI “But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.”

Pym has gone far beyond what I consider the scope of her authority. Indeed, her actions appear almost legislative in nature. Congress has not ordered such back door access to be supplied by companies and such a move would raise difficult privacy questions. It would also conflict with some other countries that have balked at the effort of the Obama Administration to strip phones of privacy encryption protections. The phone in question is tied to Syed Farook and his wife, Tashfeen Malik, killed 14 people in a Dec. 2 shooting at a holiday luncheon for Farook’s co-workers.

Adding to Pym’s controversial decision was the fact that Apple was not even allowed to participate in the proceeding on Tuesday. Pym simply ordered the company to give her an estimate of the cost of its involuntary work for the FBI. That misses the point. Pym cannot order companies to become effective partners with the FBI in developing new technology.

Pam’s order raises chilling constitutional questions that should be fully reviewed by a federal district court judge and an appellate court. The implications of this order could be breathtaking for private businesses and citizens in my view. It is worth a public debate over privacy protections and the right of the government to force companies to develop new technology or systems against their will.

Pym is a former prosecutor who was appointed as a United States Magistrate Judge in 2011. She served as an Assistant U.S. Attorney and Chief of the Riverside branch office of the United States Attorney’s Office, doing mostly criminal prosecution work. She graduated with a law degree is from the University of California, Los Angeles School of Law.

Here is the order: Apple Order

113 thoughts on “Federal Magistrate Orders Apple To Help FBI Hack Its Own Phones . . . Apple Refuses

  1. I can tell from the comments here that most people on the “Apple should just unlock the phone” bandwagon (as if it was just that easy) do not have any understanding of the technology involved or the real issue Apple has with the government’s request. This is not as simple as Apple handing over information that they already have or have access to – the government is ordering Apple to write NEW software for them that does not currently exist. There is NO backdoor in the current version of iOS; the previous incidents of Apple unlocking phones for the FBI were done on old versions of the OS that did not include the newer security features. These security features are not just some app that’s running on the phone that can be turned off, they have to do with the entire way the OS is written. The issue is not whether or not the government has a legitimate interest in the information on the phone. Of course it has a legitimate reason for obtaining it, and information like this is obtained via warrant all the time… The problem here is that Apple does not have that information to give to the government in this case, and to obtain it would have to engage in extensive and expensive work. This is akin to involuntarily deputizing a citizen and ordering him to engage in police work to obtain evidence. You can’t order a person to do a job (even if you pay them – eminent domain applies to property, not services), and if corporations are people, you can’t order corporations to do jobs either.

    • Mike – it appears they want them to write software to be upload to the phone that would allow them to ‘brute force’ the 4 number combination to unlock it. The biggest problem with that is that Apple assured buyers that the govt could not get into their phone. The next biggest problem is, then the government is going to want it upload to all the iPhone on the next upload. Google is supporting them, so at least they have moral support.

  2. The bottom line is to surface the missing 18 minutes. After that Apple and the courts could wail away at each other. Imagine the marketing campaign Apple could run by standing up for all citizens first along with its customers by providing the missing 18 minutes and then standing steadfast. As it is Apple is only standing on some sort of proprietary rights BS.

    • issac – Apple couldn’t ask for better free advertising than what it is getting. It’s customers are very happy with the stand that Apple is taking. It is backing its product. They have helped to the point that they can without violating their agreement with the customer. I think that what the judge is demanding that they do is illegal.

  3. J-the court has ordered a non-party to provide services that the non-party has no legal duty to provide. Either the order will be vacated, or the Magistrate has effectively created a new legal duty. Generally, the court does not get to say “I think it would be a good idea for you to perform a particular act, so I hereby order you to do it.” The court has the power to order a party to perform a legal duty, but no such duty has been identified here.

  4. ‘I would eat my shoe’: McAfee tells FBI he can open San Bernardino iPhone for free
    https://www.rt.com/usa/332948-mcafee-san-bernardino-iphone-apple/

    It will be fascinating to see how the FBI responds to this. Personally I think McAfee is calling their bluff. They don’t care one whit about what’s on that particular phone if it even exists. They want what’s on EVERYONE’S phone and it fries their a*s that they can’t get into the iPhone. The only problem now for McAfee is they will try to force him to teach them how to hack into ALL iPhones. If he can hack one, why not them all? These power mad people never know when to quit.

  5. Just WATCH,. Tim Cook is going to end up in prison. They’re not going to let this one slide because too much is at stake. They’re going to make an example of him. Either that or Tim Cook will fold because otherwise he’s going to prison. The legislation to make it a crime to disobey Big Brother is already in the works. Apple cannot save us. Edward Snowden warned us against looking to corporations to save us. Apple cannot save us, but we can save Apple.

  6. Why doesn’t Tim Cook simply provide the 18 minutes of info and stand fast on guarding the technology. Is anyone that naive to believe that Apple cannot unlock the info. It is part of their tech development to know absolutely everything there is to know about their phone’s capabilities. Do you think they just start building it and at some magical moment say, “Well, I can’t open her up, so it must be perfect.”? This sounds like the move ‘Failsafe’ where there was a point when the bombers could not be called back. In real life, in Apple’s life, they either already know how to hack the system or could do it.

    This is primarily about posturing for the sake of marketing. If Apple provides the 18 minutes then the illusion of a perfect iPhone is gone. In reality it is all about an illusion of something a toy does. It is already a known fact that cell phone transmissions can be monitored and accessed.

    The bottom line here is the 18 minutes of conversations may very well lead to heading off other threats. These two scum terrorists enlisted a third party to obtain weapons. Somewhere along the line someone’s rights were protected, in theory, and the obtaining of weapons was accomplished. There are freedoms and then there are mindless illusions of freedoms.

    • issac – to you really believe that the govt will let Apple just get the 18 min and then not seize the software? Actually, the software has to be loaded onto the iPhone to make it work. It is possible that it has to be loaded on to all iPhones to make it work for just this one iPhone. That would mean the govt can now brute force anyone’s phone.

      Supposedly they are looking for the 18 min of geo-data to locate where the people were. But even that is only good within 50 feet.

  7. Paul

    Your argument relies on the premise that the government will get what it wants however it wants it. Apple is refusing everything right now. Their position is one of placing their market value ahead of the security of Americans. The government has the bottom line but the situation will out through a back and forth until the legal mumbo jumbo and perversions are resolved by the courts. If Apple simply provided the info, without the software and phone then the government would have the choice to accept the info, kiss off the phone, and forego obtaining the software. It would be a case by case issue. For example if the government came back and tried the same thing with another case such as a drug dealer or something that is not of the same level of seriousness as this one, then Apple could use the precedent that it will offer the info, only, or not. If the government accepts the info only then they are getting what they need and have a right to. If they don’t accept the info only then it is back to the courts. It makes the government putting their power structure ahead of the best interests of the country, sort of like the Republican party.

    The highest value here regardless of how it’s worded or interpreted is the security of the country which is to be found in the eighteen minutes. The rest is marketing, power mongering, and ego. Obtain all the info on the phone and give it to the government or the people of the USA for everyone’s security. Keep the software out of the hands of the government even if that means destroying the phone. Apple should be working with not against the best interests of all. Both sides don’t need to be obstinate and vacuous. All it takes is one side to provide a viable solution, unless you’re dealing with the Republican party.

    • issac – there is no way that Apple can get the information without adding additional software to the iPhone allowing a ‘brute force’ attack. Additionally, Apple may not be able to add it to just the one phone but will have to add it to all iPhones as part of an system wide upload.

      Apple has done their part, the government needs to do theirs. They have a couple of Kray supercomputers sitting around that should be able to solve the problem. Now they are accusing Apple of refusing to help as an advertising gimmick. The government just doesn’t want to be the one that make it a brick.

  8. MIke:

    “You can’t order a person to do a job (even if you pay them – eminent domain applies to property, not services), and if corporations are people, you can’t order corporations to do jobs either.”

    *******************

    Somebody needs to get this information to every judge in America who routinely makes citizens do things they don’t want to do like show up for court and testify under pain of perjury, catalog and produce documents, recall dangerous products at their expense, clean up polluted land and water, subject themselves to court receivers, modify past discriminatory practices, turn over their assets in bankruptcy and perform community service. Whew, glad you caught that!

    • mespo – problem is that Apple is not a party to the action. As far as I can tell, the magistrate (lowest of the low) does not have the authority to order Apple to do anything.

  9. Tim Cook should explain his profit margin to the families of the 14 dead. The murderers/terrorists had a friend and neighbor and perhaps even co conspirator buy the guns. Now, did they communicate by iPhone? The only thing anyone can say in Apple’s defense is “Is there an echo in here?”, as they ask with their head where the sun doesn’t shine.

    If it is legal to tap a phone with a court order then it is legal to access the 18 minutes in this cell phone.

    • issac – is it legal for the govt to get a warrant to search your house? Yes, of course. Then, using your logic, it is legal for the govt to force you to give you a key to the house in advance.
      The theory has always been, you can have the house, safe, phone, etc, but you are not required to give them the key. And do you have the right to force a third party to break the code?

  10. Paul

    They have the key by virtue of being able to obtain a warrant. If a judge creates a warrant or the government/police/whatever’s right to search premises, then such is life. It comes with the territory.

    The key here, that you seem to be missing, is that Apple could very easily offer to take the phone, do whatever they need to do to obtain the 18 min, then destroy what they have done. Of course all this would have to be agreed upon before hand and all the relevant stuff would have to have been downloaded from the phone before it came into the risk of being destroyed.

    You need to pay attention to my logic, instead of reading into it whatever you need to continue your argument. My logic dictates that there is a higher necessity here, the security of the entire nation, not just the security of a product that will probably not exist in a very short time anyway.

    I am not advocating that Apple hand over any technology, nothing but the info on the 18 min. If you misinterpret this then either you are funning me or incredibly obtuse. I’ll go with the former.

    • issac – in theory I would agree with you. However, NYPD has 170 iPhones it cannot crack and says that if the FBI makes this happen, they will hop on the warrant. So, from 1 phone we go to 171, then there are all those others out there.

  11. Paul

    Warrants are issued case by case. If the government, that is supposed to be putting away the bad guys and protecting us all from terrorists, deems it necessary then they should be able to request and receive the info and the info only. We already have this as do most other advanced nations. Personally I cannot see how some sort of fleeting proprietary marketing mumbo jumbo should be able to take precedent over our collective best interests. Again, this should pertain to the information and by no means the technology. There is also a question of seriousness. If this was about thwarting another 9/11 Apple would be cooperating in a New York second. Apple looks extremely diminutive here, taking on the big bad government to protect its customers rights at the expense of our nation. There is something very very small about Apple here.

    If Apple sets the precedent and controls the process then they come off looking strong. If Apple forces the government to figure out a way to hack their iPhones, then Apple loses, looks stupid, and kind of misses the bus. In every altercation there is the opportunity to take control and provide a win win solution. I don’t think the likes of Bill Gates, Steve Jobs, and Tim Cook give a rats patootey about ephemeral Constitutional rights. Their bottom line is the almighty buck and they will market this until they start to look bad, then come off like heroes. In the end, figuring out how to access the info on an iPhone and controlling the technology is in Apple’s best interests vis a vis security and all that secret stuff that people are stupid enough to put on the phone in the first place.

    • issac – DoJ is saying that if the FBI gets the court order, they have several iPhones they need unblocked. This is not a one-off. The FBI is trying to make it that way, but it will never be that way.

  12. Yesterday the case took a new twist when Senator Rubio suggested that President Obama should call all parties into the White House to hammer out an agreement. On a case that is already in court? Wow! What a whopper by this candidate for the White House.

  13. Dieter

    Irrespective of all the input from the peanut gallery, those that avoid the reality of the situation by projecting Orwellian scenarios, this all comes down to a situation of degrees. If the conditions were closer to 9/11 then Apple would not be so narcissistic so as to take this private citizen against the government stance. Time is the created of distance between the event and business as usual. The bottom line is that the government, or in simpler terms all of us, have the right to invade our sacred privacy when it is deemed necessary. We grant the police warrants to search our abodes, our persons, etc. Only Apple with its infinite financial and therefore legal resources could pull off this travesty. Two whack jobs that slaughtered 14 innocent coworkers and employed another(s), most likely while communicating on this sacred iPhone, have absolutely no rights, nor do anyone that was either knowledgeable or complicit. The means by which they communicated cannot be afforded any luxury of so called privacy at the cost of our nation’s security; our nation being us all.

    Even Bill Gates agrees that the info should be accessed for the government. Apple can do it and keep their technology private. They should do it whenever we, the people deem it necessary, regardless of it being the DOJ, FBI, CIA, or any other agency entrusted with our security, requiring it so. This has nothing to do with the Constitution, the Bill of Rights, or anything else that may appear sacred to some. This is all about the little guy who really, really, really likes to see the big bad corrupt government stand down, once in a while. I am all for the government taking a hike when it is in the wrong. This time it is in the right and Apple is in the wrong. The argument is not David fighting off the Philistines but Apple trying to make a buck at the expense of the security of all. The time lost while this self serving financial issue has gone on is tantamount to a crime by Apple. There should be a forthcoming delivery of the info on the phone accompanied by substantial fines. Perhaps Tim Cook should spend time in jail for being in contempt of court. The relatives and loved ones of the 14 victims could then come and visit him. He wouldn’t have the minerals to face them.

    It is amazing how sacred texts become so much mumbo jumbo when confronting common sense.

    • issac – it appears the FBI has not been telling the real story here. They had the County reset the password to the iCloud and then screwed that up. Now they want Apple to unscrew what they screwed.
      Apple announced today they are working on iPhone that it would be impossible under an circumstances to ‘brute force.’

      Dieter – Apple is a third-party. They had nothing to do with the mess made by the FBI and DoJ. Evidently, the phone is at the point where if you make a mistake now, it is a brick. Now DoJ has claimed that it is only for the one phone, however yesterday they said they had 17 other phones that needed hacking. The NYPD has 107 they need hacked. My position is that the magistrate does not have the power to force Apple to hack the iPhone.

  14. Dieter

    Rubio is a vacuous pimple who develops a new twist on a regular basis. Months ago, he campaigned on the premise that Obama was overwhelmed, didn’t know what he was doing, was inadequate for the job, etc. As that, in the face of success after success by Obama, began to lose its effectiveness, Rubio then created Obama the evil genius. Now Obama is not overwhelmed, does know what he is doing, and is more than adequate for the job. Now, however, Obama is evil and everything he has accomplished and will accomplish is simply evil. Rubio represents that large section of Americans who simply want someone to blame, but don’t have the time or the brains to figure out whom. Heaven help us if he gets any further up the line. Rubio has never stopped to spend enough time to master any moment before he has jumped on to the next level. This says, unfortunately, more about the state of our political system than Rubio. There will always be shills and shysters like Rubio. The problem is they should be getting no where near the positions of making decisions, well perhaps in response to “Do you want fries with that?”

  15. Paul

    I think we should revisit Hitler’s take over of Europe and how it was partially facilitated by Prescott Bush. Or, perhaps we should review the actions of Attila the Hun. Was he such a bad guy? Did he slow down the power grabbing monks and fend off even more terrible tragedies?

    The only issue here is that instead of stepping up to obtain the info, Apple is pontificating, using ephemeral rights and privileges, and hanging the US out to dry. It has nothing to do with third party, second party, or any other parties. It has nothing to do with what went on before and this or that person’s slights or inferences. The task at hand is to access the info. Apple can get on board and retain their proprietary technology. The government has stated this. Apple is milking this for sales, either new ones or avoiding to lose them.

    Your position is the little guy standing up to the big bad administration, something everyone feels, even Tim Cook. There comes a time when one is either on the bus or off the bus. The bus is the security of the US. The fact that this phone may play an important part in our security is a forgone conclusion, gone with the 14 dead.

    You need to go back to search warrants if you are going to get on your bus. No, one cannot allow the police to search that basement for the remains of the missing children of the neighborhood, and so on.

    • issac – crap is crap. Does the magistrate have the right to order you to break the code on the phone? No. And the magistrate does not have the right to order Apple to break the code, that the FBI and DoJ screwed up. The FBI and DoJ are responsible for the mess they made.

  16. Paul

    Your logic is now for all to observe. Because of procedural issues, the US and its citizens will just have to live with the threat, a threat already illustrated in the slaughter of 14 innocent coworkers of two wacko Islamist terrorists. Nope, don’t have to lend a hand, step up to the plate, or involve myself. Tim Cook has his own security. You should go down to the World Trade Towers memorial and get on a soap box. You have to be doing this on purpose just for kicks, right?

    • issac – can the magistrate force you to hack the code on the iPhone? Don’t plead ignorance of coding, just answer the question.

  17. The courts/magistrate/authorities/whoever, that represent the best interests of all can demand entrance to private property, bank info, telephone records, etc. This demand by the magistrate may be unique but is supported by overwhelming precedent. It’s done and the government has recently gone on record that it is not demanding the technology but is demanding the info. Neither you nor I are competent enough to chime in on what is and is not possible regarding the accessing of the info. So, we will find out. In my opinion Apple must provide the info if it is capable. Apple is not required to provide the technology. How this comes about is the dance going on at present. The rest is BS. You have stated your opinion and I mine. We’re done on this one.

    • issac – the government has just admitted that it could be precedent setting. The FBI, DoJ and County screwed up the phone. That is not the fault of Apple. It is not Apple job to cover their a**.

  18. Paul

    The way you keep repeating what amounts to nothing leads me to believe that you are really Marco Rubio; same vacuous position, over and over.

  19. Paul

    That makes absolutely no sense at all. Just trying to get the last word here, are we? You can’t get any more non sensical than that, or can you? Go for it.

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