Feb 19, 2016 Here are the court documents behind Apple’s refusal to become an FBI terrorism-fighting arm
Much ink has already been devoted by others justifiably to support Apple’s resolve to engage in court battle against a federal magistrate judge’s February 16, 2016, order (“Order”) for Apple to become an involuntary government contractor to find a way to bypass its apparently masterful success in password-protecting iPhones.
The Order is meant to enable analysis of the password-protected iPhone of one of the purported and deceased San Bernardino murderers. Certainly, a legitimate role of government is to investigate terrorism, so long as that is done within the bounds of civil liberties protections and not to further entrench the United States as a police state. However, we expect fascist nations — and not free and democratic states — to force private companies to become arms of law enforcement agencies.
Rather than my amplifying opinions that already have been stated about this Apple Order matter, I provide the following additional thoughts and court documents.
– The Order is issued by Magistrate Judge Sheri Pym, who was appointed in 2011 after working as a federal prosecutor. Magistrate judges are not actually Article III judges under the Constitution, because they are appointed not by the president, but by the federal trial court. Unlike Article III judges, magistrate judges serve for eight year renewable terms. That does not mean that magistrate judges do not wield great power, because they often do. Nevertheless, magistrate judges’ actions should be seen in the context that they are not presidentially appointed, do not go through a Senate confirmation process, and do not get the lifetime appointments that help insulate Article III judges from job security backlash for their actions.
– The court Order specifically gives Apple five business days (until February 23, 2016) to seek court relief against the order. No doubt, Apple’s lawyers are working around the clock including weekends, and likely to the tune of at least hundreds of thousands of dollars, to prepare its court filing challenging the Order.
– While Apple is on the side of the angels in battling against this Order, news reports show that Apple many times complies with law enforcement requests to provide data for its investigations.
– Apple’s showdown against the Order likely will involve the federal government’s and Apple’s assembling top notch legal teams and substantial expense budgets on each side. It is sad that such government muscle often leads smaller companies tend to back down from such legal showdowns, to avoid the financial burden of such battle.
– If the Obama administration — which has been no great prize for protecting privacy in the war on terrorism, in the first place — is going to pursue upholding the Order, do not expect a Republican presidential administration, nor Hillary Clinton as president, to do any better for protecting privacy rather than trampling on privacy in the name of fighting terrorism and in the name of our overgrown and excessively oppressive national security state. Would Bernie Sanders as president take a more privacy-protecting approach?
– Apple has brilliant technology wizards. If Apple complies with the Order, can any government resist seeking future court orders requiring Apple and other technology companies to become forced government subcontractors to assist surveillance activities?
– The FBI can promise all it wants that it will not try to use the Order to assist with any other investigation. However, Lucy van Pelt repeatedly prevaricated to Charlie Brown that she would not withdraw the football right before he tried kicking it. Beware the FBI’s word here, and beware what foreign governments will do in trying to force Apple to assist with disclosing and using the technology that would be developed if the Order were followed.
– FBI directors change, as do the attorneys general who run the very Justice Department that includes the FBI, as do the presidents who appoint the attorneys general. Today’s FBI promise is subject not only to change from future people running the FBI, but even from the current FBI director if he decides that “circumstances have changed” that necessitate going back on that promise.
– If Apple were to comply with the Order, how much money would Apple need to spend in terms of humanpower, opportunity cost, and lost revenue from public backlash for complying with the Order? Even if the court requires the government to pay for Apple’s efforts under the Order, those payments will not cover such public backlash nor Apple’s opportunity costs beyond humanpower.
– If Apple were to comply with the Order, what would that do to the morale of its employees? If Apple’s employees simply resigned in protest, then nobody would be left to have the Order complied with.
Praised be Apple for taking the side of the angels against this Order.