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. The government ” makes” ppl do things all the time. Bought your obamacare policy lately? Put in you john roberts windows lately so you can legally sell your house? Oh your not an insurance company or window maker tuff titty. Dormatt commerce clause….just cuz congress hasn’t said ever lock needs a key….doesn’t mean this judge is “legislating” anymore than any “remedy” equity requires. Equity requires apple unlock this phone at issue …..that it might lead to unlocking, a fortori, millions of phones, is not the governments problem per se. But apples problem, if thats the consequence. For no one mandated broad enxryption. That’s apples collateral damage. No one elses. And to hide their aiding and abetting on our fears of privacy invasion is not genuine.

  2. What ya’ll above said plus emminent domain. Apple could not aid and abett dead terrorists with no privacy rights (county phone) if first there wasn’t an infrastucture. And there would not be towers and lines ( nodes) without eminent domain…i.e. For a public purpose. The fact is this requested hack isnt for precog or the matrix. It is for national security. For real. Not hypothetical. The telecoms got via the courts “legislating” already…immunity. What towers does apple have? Only contracts on our public lines, fostered by emminent domain, that can be void against public policy. Their choice is to aid and abet murderers or risk access period. The question is why are they falling on thier sword for this cut and dry case? Because its a sham. A sham case. Just as presented by apple…..if they do this now for the fbi no one is secure. Really? The encryption isn’t phone specific? Some encryption. But notice apples “privacy” concerns vs the facts….a govt phone after the crimes. This is a sham. Sham. Sham.

  3. Paul

    Apple has the clout to offer the info and the info only. If the Government wants access to the technology then that is an entirely different issue. Apple is obligated to assist, morally, patriotically, and simply rationally. If Apple accessed the phone, forwarded the info, and then took its stand then the government would be forced to do all those things it is accused of. If Apple refuses to even attempt to uncover the info and provide this extremely necessary info to the government then Apple risks having the government take it to the next level.

    The smartest thing for Apple to do is to forward the info and stand fast, after marketing the kaffufful for all it can get. When it comes right down to it it is a question of which is important, our security or Apples bottom line.

  4. Paul:

    ” but I think they are at the “one more miss and its a brick” stage.”


    I’m sure the government would execute a hold-harmless agreement if Apple tries in good faith to unlock the data and fails.

    1. mespo – the govt might hold them harmless but the magistrate seems to want a backdoor.

  5. Hence why we need to keep government in check.

    It tends to spread, naturally, with the trend being complete bureaucracy intruded into every avenue of life, collecting every dollar possible.

    If you don’t like the government in your business, stop encouraging its spread.

  6. Paul

    Fact, one of the most valuable and effective weapons used by terrorists is the cell phone. It is used to detonate bombs and coordinate attacks.

    Fact, two terrorists killed 14 people and our country, which is under attack wants to access 18 minutes on their captured cell phone, a cell phone which just might have been used to coordinate with others, ya know, if you really stretch your imagination, about an inch.

    Fact, Apple is placing the capacity of the phone to be absolutely private ahead of national security or the security of the next victims, a capacity and value that doesn’t even enter into the argument.

    Fact, these devices inevitably are hacked which is why there are so many ‘generations’ of these toys. Eventually the 18 minutes will be available. Perhaps Apple will then sell the info to the highest bidder.

    Fact, Apple could and should open the phone, produce the missing 18 minutes and guard how they did it, if this is possible.

    Fact, Apple is marketing its phone as being stronger than the US government, stronger than the security of the nation, the ultimate John Wayne.

    Fact, Apple’s iPhone is not the issue, the 18 minutes are the issue. Apple could provide the info and keep the privacy value of the phone.

    Skreli and Cook were probably bunk mates at school. They both employ the same logic. They both are scum. There is no threat to any rights whatsoever. There is a threat to America.

    This is an exercise where the mindless pursuit of the illusion of some individual right, which is not even in question, takes precedent over the common good, a common good that is the safety and security of the very individuals. This exercise illustrates the height of stupidity of some Americans, even the most wealthy. C’mon Cook. There is the illusion of privacy and security and the reality of privacy and security. Ask the families of the victims of these terrorists. Perhaps Cook should ask them.

    1. issac – there is no way that the govt is not going to either seize the software, using eminent domain or something. Fact, Apple and Samsung made assurances to their buyers that the phones would be unhackable. If either company helps out, I am considering a class action suit for false advertising.

      Do companies that make safes have to have a ‘backdoor’ so the police can get in? No.

  7. Apple executive should be obligated to attend the funerals of the victims of terror attacks. There is a place for Martin Skreli at Apple.

  8. Apple has unlocked plenty of phones for the FBI in the past. 70. In fact. So it surely isn’t privacy concerns. No privacy for dead terrorists, anyway. And likely, as one commenter noted, the phone isn’t married to anyone so no marital privilege applies. Why the defiance now? Must be money since that’s what drives the beast. And for those who think, “the Republic can survive” not having the info, just two words: dirty bomb. ISIS has been searching for the ingredients for the past four years according to British intelligence and they plan to infiltrate it through Mexico via illegal immigrantion routes. If that happens and hundreds of thousands die because Apple refused to reverse engineer the data retrieval your guess about survival of the Republic is as good as mine. But the survival of Apple will be a fait accompli.


    1. mespo – according to the documents the govt is trying to find the geo-tracking for a missing 18 mins. Apple has helped to this point, but I think they are at the “one more miss and its a brick” stage. Apple is not going to take the fall.

  9. issacbasonkavichi ” You’re either on the bus or off the bus when it comes to the issue of terrorism.”

    Hildegard is off the bus.

  10. Can’t believe all the ones more afraid of “terrorists” than our own Government. Never had any run in with “terrorists” before, but I’ve had the many levels of Government screwing me for decades!!
    Next the article I’ve read said that Apple has done ALL it can do, (with what they have right now), to help the FBI….what the judge is ordering is for them to make something that will disable the 10 tries code so the Gov can brute force the phone data. Which means that the technique would work on ANY phone, despite the judge’s order that it be ‘keyed’ to just this phone….so basically her request is NOT doable…as she wrote the order.

  11. The Endhame is to take ALL our rights. Only the sleep walking masses don’t get it. At what point do we say NO? 1984 is here NOW people. Wake UP. At what point do we say enough is enough? Giving these known criminals and liars the power to ‘protect’ our rights by violating our rights is like hiring a bodyguard to beat you up randomly. Too many people are waking up this spy state bull shite to buy this crap any longer. And furthermore this San Bernardino event was probably faked or staged. Problem, reaction, solution… It’s the SAME script everytime.

  12. If the spouse survived they could not be forced to testify against the other. If the person wrote the suspected information in code, they could not be forced to testify as to the meaning of the code. The Republic can survive not knowing the content of this person’s device- which may be considered, like an artificial leg, as an extension of the perp’s own mind. Sometimes investigations simply cannot reach the desired information, and there is nothing legally that anyone can do about it under our Constitution.

    The hysteria of some commenters here is absurd.

  13. Paul:
    Apple places a device in the stream of commerce whose foreseeable use demonstrated by many provable acts is in secretive service to mass murder and destruction. When confronted with this knowledge the company refuses to aid the government in the investigation or prevention of the foreseeable horrific harm. His do youngish that civil case by the surviving victims or their families would come out? Can you say punitive damages? receivership?

    1. mespo – first, good to see you back. Second, Apple has tried to help them within the confine of the iPhone as it is currently designed. Backdoor? Can you say class action for violation of privacy?

  14. Paul

    Firstly, Apple is going to get billions in increased sales due to all the BS. The taxes alone will be more than 5 mil. Secondly, 5$mil is nothing if something is uncovered that assists the government in thwarting another attack. Thirdly, a valuable precedent could be set where the private sector maintains a necessary degree of autonomy but at the same time participates in the best interests of America. When you stop and think about how it should have gone down, Apple simply offering to surface the info but not the technology, and see this circus, one is reminded of the worst side of the private sector. It gives that circus known as the GOP nomination a run for its entertainment money.

    1. issac – the NAS has downloaded several supercomputers worth of data and has not stopped anything. What Apple is doing is not going to stop anything now or later. There are supposedly looking for the tracking data for an 18 mins.

  15. Paul

    There’s naive and then there is obtuse. This is being milked by Apple for increasing sales. Apple will milk it until the tide changes and they are seen as they really are, self serving at the expense of our security. Apple should be able to access the necessary info without revealing how and the privacy issue will not have changed. If Apple is the only one that can do it and guards the technology then it is no different than if it weren’t done in the first place. One thing is for sure, the iPhone in question will soon be hacked by someone. The only way Apple will be able to keep the privacy issue as proprietary value is to keep updating its phones. The moral and American solution is for Apple to provide the info and the info only to the government. This is all about sales and Apple will market this puppy. The proper outcome for all of this is for the government to get the info and Apple to retain its proprietary technology. Until then Apple’s sales will climb, its share price will rise, and America will have to wait until it gets the low down on what those scumbag murdering terrorists were talking about. But hey we’re naive, aren’t we?

    1. issac – it appears the magistrate is willing to spend our money to hack it. She wants an estimate on the cost of doing the work. Now, if I am Apple, I am going to set it at about $5mill. There is no such thing as a free lunch.

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