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
Paul
You can spend your time being obstinate or do the right thing. The right thing is to provide the info, if at all possible. Throwing a litigious hissy fit because you don’t like the way it was phrased or you want to prove how above everything you are is not part of the equation. The most important result of any of this is to surface the info on the phone. If Apple can do this then morally and ethically, not to mention as Americans they are obligated to do it. How this is done and whose tail feathers have been ruffled is nothing. Apple has lawyers and an opportunity to establish important precedent. If they can’t do it, the government will probably not be a determining factor in overcoming the reasons why it can’t be done, technically. If they can then the government should probably pay for Apple’s time if at all. It comes down to being a larger issue than the nonsensical mumbo jumbo surfacing right now.
If it can be done it will be done eventually. Better Apple masters this so to keep control of the technology. Or perhaps pals of the killers will figure it out while Apple and the government waste time.
issac – are you really so naïve as to think that if Apple does this that the govt will not coop the software? And when Apple does it, then Samsung will have to do it, the Blackberry. And why not your tablets? My tablet has a lock on it. Where does it end?
“Dan – the DA has said they have been unable to crack the phone. Believe me, if they thought they could do it, they wouldn’t be going public. I heard about this last week.”
The DA may very well be unable to crack the phone. But that says nothing about the NSA, which does not report to the DA. What the Snowden revelations show is that everything is much worse than you know.
The FBI already has the information, but they can’t act on it because it was obtained “illegally”. They want a court order to be enforced on Apple as a cover for the secret NSA program. The FBI, the NSA, and Apple all know that no cracking needs to be done. But Apple is being asked to act as cover for the NSA, and does not want to. That’s not part of the agreement they made to put backdoors in security of all their products.
Dan – whatever, I don’t think Apple wants to be their beard. 🙂
The phone’s data are evidence in a murder case. Apple has obligations to provide access to that information — moral, ethical and legal.
mespo – Apple has no obligation to develop a backdoor for their phone. They have already offered their help with the phone to the extent they can.
Of note, the order itself recognizes that it is not requiring the production of information but is requiring that Apple provide “a service.”
The order requires Apple to to the work to establish a way around the aspect of the phone that will turn it into a brick if there are too many failed attempts to get into it. As I understand it, this will then permit them the access necessary to decrypt the phone. While it is generally accepted that information can be obtained from third parties via court order, it has not been generally accepted that a court can require a third party to take on a work project–a project which it had no duty to perform and objects to doing–to develop something for the government. The government is free to offer employment to those individuals it believes may have the skills and knowledge to do that work.
With Justice Scalia gone, it’s a slam dunk – Comply with ‘Big Brother” or else . . .
Paul
Quite the contrary. Apple should be required to produce the info on the phone if it is capable of accessing said info. Apple should not be required to provide the ‘key’ to the back door. The US has a variety of courts to which this compromise could be taken. The issue driving the government’s position is the info regarding terrorists. Apple should counter at this level.
There are two separate yet connected issues. Providing the info is the duty of Apple. Providing the technology is not. Typically one side will ask for more than it needs in order to get what it needs. Apple is in the driver’s seat in that the government needs Apple to access the info. Apple does not need the government to maintain that it is not possible to access the info.
issac – Apple is not even a party in this action. She has no power over a third party who is not party to the action. If I am Apple, I ignore it. She does not exist as far as I am concerned. And I stop cooperating with the govt.
Did she take Constitutional Law from Obama?
Prof. Turley:
A former student. Having spent way too little time and using only Google, I am intrigued by the key/combination distinction made by Stevens in Doe v. US, 487 U.S. 201 (dissenting). Apple’s customer letter on this topic refers to the sought information as being a key.
While the issue before Stevens posed many factual differences, any thoughts on the validity of a framework based on Stevens’s distinction?
A lot of this discussion is about encryption, but if I have understood the issue correctly, the actual court order concerns only the 10-strikes-and-you’re-bricked system and has nothing to do with encryption per se. Many of the issues remain the same (the interference with Apple’s business; the backdoor problem), but what the FBI want is to be able to apply their decryption prowess to the contents, not for Apple to decrypt it for them.
gshenaut – the govt wants a backdoor. They are afraid the 10 strikes rule and you are a brick will kill them. I am with Apple on this. They have a strong legal position. Much better than the govts. And by the time it gets to the SC there will be 4 new justices.
Paul – A corporation is defined as a “person” for some, but not all, purposes. It has the right to contract, sue or be sued, make campaign contributions, and other enumerated rights. But there are limits to corporate “personhood.” For example, I wouldn’t let my daughter date one. 😉
Tin – you are rather bigoted. I am sure your daughter is living with one right now. 😉 Just wait for the day when she brings the corporation home for dinner.
The government really needs to find a long-term solution to the decryption issue. It can’t go cell phone by cell phone, company by company, each time a terrorist commits an atrocity against American citizens. And there will be more, given our lax immigration policy. I would suggest something similar to the Manhatten Project that developed the atom bomb. The government has the money to hire away Apples’s engineers; offer them $1 million a year and they will come. Also bring in the brightest professors and graduate students from the top engineering schools. It can be done. As for Apple CEO Tim Cook, well, Congress has the authority to reinstate the draft on whatever terms it chooses. How about drafting 55 year-old gay billionaire CEOs and shipping them off to Iraq? After all, I’m sure he supported gays in the military! HaHaHa.
Tin – last time this happened the owner of the encryption company refused to give the key to the govt and went out of business. He probably started a new one.
The Fouth Amendment protects the privacy of PERSONS. Apple is a corporation.
Tin – I know we are entering messy territory here, but Apple is also a person.
Slippery slope anyone?
The fact is that all that Apple needs to do is get the phone from the FBI, take it to their labs, and break into the phone to retrieve the info. The FBI does not need to be looking over their shoulders or be privy to the process. It does not need to re-program ALL I-phones to be able to do this. So I fail to see what the problem is.
randyjet – you really do not understand encoding do you?
It’s theater, isn’t it? All that is happening is that Apple is being asked to crack the system openly, in public. As opposed to having NSA do it surreptitiously. The government wants two thing: 1) the legal authority to decrypt anything; and b) the company to bear responsibility. Apple reciognizes this as bad for it’s business and refuses.
Apple refuses to say (and presumably is prohibited from saying) is that the government already has the information because the backdoors for the NSA are already in place and fully functional.
Dan – the DA has said they have been unable to crack the phone. Believe me, if they thought they could do it, they wouldn’t be going public. I heard about this last week.
Since the phone is not private property and the owner has granted the FBI permission to access the info on it, there is not any rational reason for Apple to refuse to do this work. There is no question that the FBI has a legitimate reason to get the info, given the number of DEAD AMERICANS, so it is absurd to think that Apple has any reason to refuse this request. The problem is ordering a PUBLIC company to use its resources to help solve a crime. As long as Apple is paid a reasonable rate, there should be NO problem.
A police officer can TAKE your car at his request and need, and you cannot refuse! So if just a beat cop can take your property and make you either drive or release your car for their use, it would be a matter of common sense that Apple has not a legal leg to stand on. As for the privacy issue, I seriously doubt that Apple will be marketing a kit for others to use to do the same for either the government or for sale. Try using some common sense.
randyjet – Apple has tried to help them crack the code but they refuse to build a backdoor into the phone. Actually, the govt wants a backdoor into all cell phones. So far the manufacturers have not complied.
Tin
We agree, that regardless of the legal mechanics of the process, Apple should, if it is capable, provide the necessary info. You’re either on the bus or off the bus when it comes to the issue of terrorism. The very country that allows this dialogue and these rights is the country whose security comes first. Common sense must find a way. The rest is the legal route that must be taken to have a way to find.
issac – every citizen should give the cops a key to the back door of their house. That is the same thinking you are using.
Tin
Great comments. You hit the nail on the head.
Here we have another example of, “I have a pen and a phone and I will use them.”
By her own job description she does not have the power to make a new law. If her order is carried out, then by what Federal Law does she base it on. However if she is a State Magistrate Judge then:
Does her state constitution give her that authority. Some states by their Constitution have given law creating authority to judge in times of state emergencies. But then again, did the Governor declare such emergency to give them that authority to forgo the Legislature to make such a law.
The Habeas Corpus shall not be suspended except for evasion to this country.
So, by California Laws she no such authority to create an order without a law to back her up.
Even The Patriot Act has no authority to grant her order.
The quantum computer is coming that is correct. http://phys.org/news/2015-10-crucial-hurdle-quantum.html
You can be sure the US military industrial security complex will control it and lock it down. They will use whatever means necessary to do so. For all we know they have it already.