Although Apple had yet to submit a piece of paper in response to the warrant granted by Magistrate Judge Pym, the government made a tactical decision to pre-empt its response by filing a motion to compel Apple to comply. Its justification for jumping the shark?
Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this court’s order, Apple has responded by publicly repudiating that order.
In itself, this is a remarkable claim. After all, Apple has retained counsel to represent its interests in this matter, and its lawyers have yet to express Apple’s legal position. Public announcements, such as Tim Cook’s letter to Apple customers, are of no legal significance, and Apple’s opportunity to respond to the initial warrant had not elapsed. But the government saw the opportunity, and seized it.
The motion to compel is a brilliant tactical move by the government.
Rather than allow Apple the opportunity to frame its position and arguments to the court, the government has taken the opportunity to frame Apple’s narrative, characterize its putative position, create the strawmen which the government can then knock down. By submitting this motion, the government has sought to create Apple’s narrative, both for purposes of the court and public discussion. Brilliant.
But the government’s memorandum in support is outrageously disingenuous. This is hardly surprising, as the purpose of the motion is to be disingenuous, to outgame Apple, rather than allow Apple to craft and present its positions, to determine its own strategy. If there’s one thing the government understands well, it’s that allowing its adversaries a fair opportunity to challenge the government’s position makes its job far harder. The government is not inclined to give its adversaries a fair opportunity.
Trigger Warning: For those of you who believe the law should be clear and easily comprehensible, you’re not going to like what Orin has to say.
While the All Writs Act remains the law, it offers little to answer the myriad questions raised here. That said, the caselaw addressing it serves as a flagrant reminder that the vagaries shrugged off in the easy cases eventually come back to bite us in the ass later.
In United States v. New York Telephone, the federal government had a warrant to monitor the phone usage of a group suspected of illegal gambling. The warrant authorized the installation of a “pen register,” a device that recorded the outgoing numbers dialed from a particular phone line. The government couldn’t figure out where to install the pen register without tipping off the suspects. In response, the court used the authority of the AWA to order the phone company to lend the FBI a telephone line and to help them install the monitoring device at the phone company.
The phone company refused to assist, mostly out of fear that the government would engage in “indiscriminate invasions of privacy” if the government had access to the network.
According to Justice White, the AWA authorizes “a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” The government had obtained a valid warrant, and “[t]he assistance of the Company was required here to implement” the warrant.
Much of the language of the decision would except Apple from its grasp. And yet, Whizzer White’s cavalier facile reduction, “it’s the government; if they got a warrant, you gotta help,” might be broad enough to wipe away all resistance.
According to the Justice White, “citizens have a duty to assist in enforcement of the laws.”
A duty? That’s a very strong word.
White cited a 1928 decision by Justice Cardozo, then a state court judge, in which he had written: “As in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.”
Is this sufficiently vague and broad to overcome the fact that White was addressing New York Telephone, a public utility? Helping the government use a pen register was negligible effort for New York Telephone; while there were intrinsic concerns that the government would abuse its tool, the concerns weren’t overarching as they are here. Is it good enough?
The answer will likely flow from the depth with which Magistrate Judge Pym (together with all the judges who will subsequently review the ruling) appreciates what the real argument against the warrant is, rather than the government’s cartoon characterization of Apple’s position. At Techdirt, Mike Masnick runs down some of the real consequences of allowing the government to have its way with Apple.
I’ll try to explain this again for the hard of thinking: if this issue was determined by a geek, the technological issues would predominate. But it will be decided by a judge, and this warrant raises the issue of hegemony. Will the law allow technology to dictate what the government is permitted to do? Will tech rule, or law?
And what would I do if I wore Mag. Pym’s robe? I would strike the government’s motion as premature. Until Apple gets its say in court, the government doesn’t get to play its hand, no matter how brilliant its preemptive tactic may be.
Update: One detail has since emerged that may significantly impact the situation. It appears that the FBI was largely responsible for the fact that the iPhone data wasn’t backed up to the cloud, and that the government’s contention that this is all Apple’s fault may be false. Via Buzzfeed:
The Apple ID password linked to the iPhone belonging to one of the San Bernardino terrorists was changed soon after the government took possession of the device, Apple, San Bernardino County, and federal officials have acknowledged over the past 48 hours. If that password change hadn’t happened, Apple senior executives said on Friday afternoon, a backup of the information the government was seeking may have been accessible.
This has been confirmed by San Bernadino County. As it appears that the FBI played a significant role in creating the dilemma the government faces, this may turn out to be a really bad case for the government to make its stand, that Apple is the one who responsible for protecting terrorists, and, given these facts, the root cause of the problem is the FBI instead.