Dave S

Urei1620 said:

@ Dave S, how much did your employer pay you to post that brilliant analysis?

I employ myself.  I don't post often and I initially suspected the FBI was likely overreaching.  I deal with them routinely in my work and I was employed with the government for a time.  It is not uncommon, in my experience, that they can be cripplingly powerful.  It can be scary if they are on your tail and many folks subject to this type of "investigation" are not clear criminals.  Rather, they operate in the financial gray area because to do so can be very lucrative.  Or, they aren't aware they are breaking a law and just can't understand why the gov't can literally shut off their life overnight (freeze accounts, arrest you and request denial of bail, seize you and your family's assets, etc...)  Again, judges need to be careful and most realize the tremendous burden they carry.

That said, I believe it is the result of judges being too friendly about finding cause to issue warrants.  Regardless, in this instance, there is no doubt the man is a killer and that the phone may contain relevant info that could prevent harm of other innocent people.  I have no clue how this can be reasonably opposed.  Leads me to wonder just how much I don't know.  Ignorance is bliss, no doubt, and I know the guys at Apple are probably doing this in good faith.  All I can say is that, from a legal perspective, they lose.  So, if Apple is right, it must be because I am ignorant with respect to some material fact that, the existence which, would swing the pendulum.

I have no doubt that there is heavy handedness and overreaching by the FBI.  I have long said that, while us advocates in the private market are expected to overreach and then back up in negotiation, the gov't should only ask for what they know is appropriate just as they should only prosecute those that are clearly guilty.  In my career, I have seen clients who clearly have a gov't target on their back and I have seen heavy handedness by law enforcement more often than not.  I agree that the approach taken in the country by law enforcement needs to be overhauled in a big way with respect being the biggest element.  Regardless, if Apple has given the info from the phone and the gov't will not stop there, then it would seem that the court could appoint an independent to confirm Apple's finding regarding the data and force them to carry a bond ensuring that, in the event of disclosure or illegal use, Apple would have recourse.

It is nobody's fault but everyone in this forum if they don't trust their gov't but do nothing to actively advocate change.  Our system has put forth alternate parties and alternate candidates.  The vast majority of people see the benefit of the system we have.  Just because we have not experienced war in our generation or seen the evil that a country with money and a beef can bring to our shores does not mean it can't or won't happen.  Our laws are not the problem.  It is the judges ordering disclosure and gov't officials abusing it that people seem to complain about here.  So, you are not looking for Apple to win, you are looking for the Ogre in the room to finally take a shot!  I get it and I don't disagree. I just don't agree that this case is the proper forum to decide that Apple gets to keep their key.

The comment that Apple does not have the key that one person posted in reply to me is not true.  The comparison in this debate seems more like "should apple get to keep a master key to the bank's entire safe deposit room even after it gets the one box open that it received a court order to open?" I don't think any of us would agree to that!

Are we saying that we are so paranoid that we do not trust our gov't not to do something illegal like look at other phones when they shouldn't if they have that ability?  Again, when we assume crime will occur on that level, those who put forth the argument, I suspect, have much bigger issues with the gov't than this evidentiary issue.  I work on the assumption that we have to trust the system.  If not, we lose.  Is it abused, sure.  Everything is.  We are still the best system in the world and, generally, if our gov't abuses something, we usually find out.

I can see why the gov't would have real evidentiary issues at trial if it were not able to show exactly how the info was extracted.  That said, in this instance, the gov't, as I understand it, is looking from more of an investigatory standpoint than prosecutorial.  As a result, on these facts, I would not let the gov't have any more than the info itself.  Where it was on the phone and how it was extracted would only become an issue in need of determination in the event the matter went to trial and the prosecuting attorney wanted to use some of the info as evidence showing the truth of what was asserted.  If that were the case, I truly believe Apple has this obligation even if it means some lack of overall security.

After all, we are all 90% good and it is only when we act collectively that things get scary (big companies and gov'ts).  So, the vast majority of us wont have our info stolen and, if we do, it wont be the end of our world.  On the other hand, defending ourselves from true threats of mass murder is serious.  We need to accord these men and women in our gov't the ability to do their job.  If they abuse it, shame on them.  Regardless, I would hope we get a fair and reasoned opinion that takes these things into consideration.  I appreciate the dialogue.  It has brought me a bit more toward the middle.  Regardless, I think we are overthinking this particular situation.  The judge should simply order disclosure of the contents and nothing more (certainly nothing that would threaten Apple's proprietary rights).

maciekskontakt said:

"... the letter says, adding that the company is to blame for being in the position it currently finds itself." No you got it wrong- if anybody then that is FBI to blame to put Apple into this position. Do not apply incorrect and political logic. Apple has point and FBI has point, but that's FBI who put Apple into this position so do not make stupid statements like that.

What is Apple's point here?  The court, properly, found cause to believe the guy committed a crime and that the FBI can look at his phone to get info about it.  Apple said they don't want to produce it because it is locked and they shouldn't have to unlock it.  So, if the court orders my bank to unlock my safe deposit box, are you saying the bank can, and should, say no?  If you are, you're wrong (at least by current law).  Why in the world would anyone not want our police to have this power?  It is not as if they can just look when they want.  They need a judge's order (which the FBI has).  To state that, if they know how, they may abuse the power and look at other info without a warrant is just foolish.  We have laws that state that they cannot.  If the police choose to break those laws, then this issue is the least of our worries.  Regardless, give them the proper tools and they are better able to do their jobs without resorting to illegal or desperate measures such as illegal searches.  So, I would argue that more danger would result from a denial of this request by the feds than would come from enforcement of their previous order!

Although I am sure Apple thinks it may have a basis for this defense, I assume that their counsel has informed them that their chances are between slim and none (even in the liberal California courts).  Please consider a few basic points.  If the FBI suspects that you have committed a crime and has appropriate probable cause to believe (objective evidence demonstrating the belief), then they seek an order from the court having jurisdiction asking for access to info they believe will lead to evidence of the crime.  IF the judge determines that there is probable cause to believe that information exists, then it will order production/discovery of the information.  Just like a safe deposit box (or a traditional safe as another comment pointed out), the court can order it be opened and reviewed.  If there are innocent parties involved, the court must weigh their right to privacy and/or other protections they may be entitled to.

The gov't properly stated that Apple put themselves in this position and can easily comply.  As a matter of fact, Apple should be aware of the law and their obligations as a company operating in this country.  If they can comply, they should.  It is that simple.  They can bill for the cost to produce and the feds have to pay if they want the info.  To say no is literally a slap in the face not only to our legal system, but to all those countries that have based their laws in the democratic methods of the common law system literally developed and refined over thousands of years.  Yes, thousands.  Although Apple and its tech is new, the issue expressed is novel.  Whether you ask a locksmith to pick a lock or Apple to unlock a phone, the court has the right to issue this order and the gov't the right to the info.

Apple has no legs in its argument that the gov't or a third party might abuse the knowledge if it is known and that's it's best argument.  If Apple can show that compliance would threaten its business or the personal privacy rights of its customers that are not under court order, I suppose it may have a point.  That said, I seriously doubt that the court will refuse to enforce the request based upon the unsubstantiated claim that it might be possible that the method used to unlock the phone would be disclosed.  It sure seems that the court could craft an order that would allow Apple to produce the info without disclosure of how it unlocked the phone.  Regardless, there is no way a known killer should have a privacy right simply because of the device he chose to store the info on.  After all, if this was a locked diary and the gov't asked the locksmith to pick the lock, does anyone really think the locksmith could defend by stating that the lock is proprietary and he does not want to pick it for fear that the info could be used to pick locks on other diaries he sold.  Sounds ridiculous eh?  Well, that is how ridiculous Apple's argument seems to this lawyer!  If it can be done, it should be.  If there is a crazy cost, then Apple needs to assert it and, if there's merit to their assertion, the court will make the gov't pay if they want it.  If it is such a burden that it threatens the business and they can legitimately show it, then the gov't could preclude the production.  We all know that is not the case.  So, I have no idea why Apple thinks it is any more special than any other company or person that has been forced to participate in a prosecution even though they have no interest and it presents a burden.  That is the duty all of us citizens have when we choose to live in a country of people that care about each other and the safety of our system.  Buck up Apple.  You're not special simply because you make a fancy tech device that nobody can access without your permission!  What makes me laugh the most is that the average person would probably puke if they knew how much info apple takes from all of us and our phones in the name of product research!