Apple 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
This article leaves out a lot of pertinent information. The NY Times reports that the Magistrate’s order is supported the the U.S. Attorney for the Central District of California.
This entire story that the FBI cannot crack the encryption software seems way too public. I would be surprised to discover the engineers created the encryption software without the backdoor capability and that the FBI hadn’t already reviewed the contents on the phone. We have a long history of code breaking in this country and it would not be unreasonable to conclude they have the information and want to give the accomplices a false sense of security in order to flush them out.
I’ve not appeared in front of this Magistrate Judge, and thus can’t comment about her specifically. But there are a number of judges in the Central District of CA who are perceived as treating the government attorneys as if they never lie and are always right. These Judges are fortunately in the minority, but they exist.
Judges, even good Judges who treat the government attorneys the same as private practitioners, make mistakes.
This is a whopper of an error. And two comments at the Robing Room suggest that this Judge is a rubber stamp for the government.
Note also that there is no privacy issue here. The iPhone was owned by Farook’s employer – San Bernardino County – which has given the FBI permission to search it.
Good point Paul. This is an order from a Magistrate. She should be doing bail hearings, not making far reaching orders.
And, BTW, Apple is not a “private company.” It is a public company, traded on NASDAQ, and enjoys all the legal benefits and protections that the U.S. government confers upon public companies.
I don’t believe that Apple lacks the technology to retrieve the information. They built the device; they can reverse engineer it. I agree with Isaac that Apple should provide the encrypted information for that particular phone. As I see it, Apple benefits from all the protections of being an American company. The company wouldn’t be the success that it is with patent protection. Thus the company should be required to undertake reasonable contributions to the defense of the country to which it owes its very existence.
Tin – this is going to cost Apple money. Not that they do not have money to burn. However, I do not think the magistrate has the power to order a non-party to do anything. And as I said before, security has become a real issue with cell phones after the Snowden docudrops. Many carriers have given away info to the govt that was not theirs to give.
THIS IS A JOB FOR Q, NO APPLE.
I order the Judge to recite the Pledge of Allegiance. But then she is not a party in my court.
Paul
If the government cracks the encryption then that is another issue. Then the issue becomes purely one of proprietary rights, privacy, and government intrusion, such as tapping phones etc. In this case there is a dire need to access this particular phone. If the information could be retrieved without Apple assisting the government in dismantling the mechanics of their phone then they should contribute to the safety and well being of the public. The problem here, as with so much else today, is the us or them positions of absolutes.
If Apple can’t or says it can’t then it ain’t gonna happen, unless of course the government figures the iPhone out. If the present state of war against he Muslim nut cases was formalized, on paper, as with WW1 and WW2, Apple would be sh*t out of luck with their arguments. We live under the sanctity of the absolutes but function in the gray areas.
issac – reading between the lines, and there may be no lines here, it may not be Apple’s software that they are being asked to crack. This is why they want a backdoor.
issac – it is not a simple problem. The government has been trying to crack the encryption on that phone for a year.
I find two things frightening. A magistrate ordered it. Lowest of the low. And Apple was not a party. On the upside, I am glad to see the new iPhone has great encryption.
Apple will appeal. Just the fact that they were not a party would be enough for me as a federal judge to throw it out.
Again one of those situations where the need to access information, in this case the need for vital information, conflicts with basic rights of privacy. There is a need for a third approach. We are in a state of war with these terrorists, regardless of semantics and/or official declarations. Apple should be encouraged, if not obligated, to retrieve the necessary information. However, the means and mechanics should remain the propriety of Apple and not be shared or forwarded to the government. The government is whoever is in charge at the moment. The issue should not focus on the government’s right to access information under the decision making of the moment by the government but on the need for information with the protection of the public through the laws of the nation.
In theory this is a simple problem with a simple solution. The real problem is the mindless approach by each side, the law almighty and force for the sake of force.
This outrageous order was well-prepared for by Obama. Why shouldn’t a federal judge feel herself above the Constitution when POTUS legislates new law, and arrogantly declares he has that power? This is NOT an incompetent judge. She believes that Apple will cave before orchestrated public pressure; that she’s protected because it won’t even be appealed. She thinks the Progressives can manipulate the public any time it needs to, and that the First Amendment is an anachronism. And – shockingly! – she may be right.
I hope that Apple looks into the Judge’s phone, and all her phone and email records found up on Cloud 9.
Pardon the expression but this sounds like a pim in a poke.
Quantum computers will soon make this discussion moot.
http://www.cnet.com/news/nsa-working-on-quantum-computer-to-break-any-encryption/
Theoretically, the R&D team has the best chance at this because they engineered the product. Mercenary reverse engineers are typically frowned upon when hired by the FBI to break consumer technology, feel me?
Exploits.
Seems pretty odd. I can understand a company being forced to disclose information to the FBI, given good cause.
But how can they be ordered by a judge to do an investigation?
How can a company be forced to divert it’s research and development team from making new products, the job for which they wre hired, to some other purpose?
It is reminiscent of the clipper chip controversy during the 1990’s.
“Trust us, we’re from the government and we’d never abuse this ability to hack into your cell phone.”
Not only a bad ruling from an incompetent judge, but a former federal prosecutor as well. No conflict there, no matter how disinterested a magistrate should be. It’s like placing Chris Christie in charge of bridge toll booths… Oh wait…