US v. Apple: The Government Seizes The Narrative (Critical Update)

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.

At Volokh Conspiracy, Orin Kerr provides an excellent overview of the All Writs Act from 1789.

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.

The Second Circuit held that the government could not compel innocent third parties to do its bidding. The Supreme Court reversed.

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.

H/T Fubar

32 comments on “US v. Apple: The Government Seizes The Narrative (Critical Update)

  1. Patrick Maupin

    As a political document, it may bu useful, and the timing, right berore a weekend, is excellent.

    As a legal document, if Pym accepts it, it gives Apple a chance to knock down the fed’s strawmen in a reply, and not clutter up their petition for relief quite so badly with preemptive strawmen-burning.

    The timing’s not bad for Apple, either — it’s probably incomprehensible to the prosecutors that its opponents might view a weekend as an opportunity to put in an extra two 18-hour workdays.

    1. SHG Post author

      You may assume too much about the playing field being level. It’s not. The bias in favor of the government’s ability to enforce law is far stronger than any concern for privacy or the efficacy of technology.

      1. Patrick Maupin

        It’s pretty obvious from some of the precedents that man is a rationalizing animal rather than a rational one, and that it’s not unlikely that Apple’s lawyers will have to derive a large part of their satisfaction from seeing how many weasel words and verbal contortions they can force a judge to put into a decision.

        Is there a scoring system for that party game?

  2. PVanderwaart

    There is so much about this that I don’t understand. The Fed’s circumstantial case that there might be useful intelligence on the phone is very weak. Does that matter? They are clearly using the terror threat to open the door to doing the same thing in regular criminal prosecutions. Does that matter? Apple’s resistance is partly based on the notion that the Feds can’t/won’t keep a secret. Does that matter? What specific criminal prosecution does this relate to, or is it just part of broad monitoring of terrorism? Does it matter? And finally, is it really so difficult to modify the software that it’s beyond the reach of the whiz kids at NSA/CIA/FBI?

  3. David Woycechowsky

    I think that Professor Kerr skated past the 4A issue (the one about data Apple has and/or creates, not any 4A issue with the day on the phone itself) way too fast, and that some people, who should know better, are following his lead.

  4. Jay

    Speaking of seizing the narrative, have you seen the google extension that will change the words “pro-life” to “anti choice” on google searches yet? Sorry to be so off topic but… I’m still trying to process this. Maybe this kind of thing was already around, but wow. 1984 Newspeak apps for all the fragile folks out there! Never see an opposing opinion ever again!

  5. Jim Tyre

    And what would I do if I wore Mag. Pym’s robe?

    Cross dress? (The Magistrate is a woman.) Given the briefing schedule she set, apparently she chose not to follow your lead about striking the government’s motion as premature.

  6. Franklin Michaels

    Another interpretation of the government’s filing may be found in a somewhat petulant footnote #3, page 3, which concludes “. . . in light of Apple’s . . . stated interest in adversarial testing of the orders legal merits, the government files this noticed motion to provide Apple with the due process and adversarial testing it seeks.”

    As in what could be more embarrassing than a do-over on procedural grounds in a high profile case of the government’s choosing? So having put the matter in issue, it’s hard to see that the M.J. Pym’s order should be anything but an order to show cause. (As unfavored the practice is outside of contempt maters, at least in CA.) But more troubling is the order’s provision giving Apple a week to make any showing that the order would be “unreasonably burdensome,” under the narrow interpretation gives as to what falls under the heading of a burden in the first place. So it could be argued that although Apple was being magnanimously granted three weeks +/- to work on it’s arguments, at least for the time being, it still has only a week to assemble its evidence.

    But on your main point of the citizen’s duty to assist the government in the execution of its criminal laws – as opposed to the government’s other obligations under the constitution and laws of the U.S. (?) – that seems somehow archaic, essentially treating the government like an 18th Century sovereign. On the other hand, if the All Writs Acts is – by and in large – applied symmetrically in criminal proceeding, I stand corrected.

    1. Patrick Maupin

      “the government files this noticed motion”

      Presumably, that adjective is there to help the mag distinguish it from all the ex parte restricted motions she’s had to look at in the case.

      If you give the FBI the benefit of the doubt, maybe they really do care only about this phone at the moment, and maybe (whether due to credible evidence or to watching too many 24 re-runs) they really think they need to access the contents, stat.

      If they’re just being big meanies, maybe it’s to add a lot of busy work on Apple’s plate during that short week.

      Or maybe they’re silly enough to think it will function as a “help-wanted” ad, and they’re looking for the “patriotic” anti-Snowden inside Apple who will betray Apple and the public for cash and immunity.

      But I think that SHG is right that it’s mainly about reframing the debate. They probably already had most of these words speculatively drafted for their response, and after Cook’s letter, figured the easiest thing to do was to go on the offensive with all the legalese, because they can’t afford a speech writer who is anywhere near as good as Cook’s.

  7. Tom

    If the government is requiring Apple to create “new” software to accomplish this task under threat of legal coercion, does this not violate the individual employees rights under the 13th Amendment with regards to involuntary servitude as clarified under Kozminski? Can Apple the corporation say “Ok” but the employees say “No thanks”?

    1. SHG Post author

      This is wrapped up in the New York Telephone decision, though not sufficiently to address the facts in this case. So it remains one of the many open questions.

      1. Ian Ameline

        As an engineer (not working for Apple, although they do ask nicely if I’d like to move to Cupertino a couple times a year), I would politely decline to perform labor on behalf of the state in this case. Go ahead and fire me. Then I would no longer be able to perform the work they were attempting to force me to perform. Do you think they would jail engineers for contempt? (I’d be willing to sit in jail for some time for this cause.)

        (A single slip up in the coding and one of the keys could be wiped — rendering the device permanently inaccessible – this work requires active co-operation and care.)

        — I.A.

    2. Syme

      And why doesn’t DoJ just hire a NSA Beltway Bandit to write the code for them? They manage to break into many other systems without too much difficulty. Their actions reminds me a bit about the “Mikey” cereal of a few decades ago, where none of the kids will touch some new brand; they want Mikey to do so.

      1. Jim Tyre

        The short answer is that even if a government agency wrote the code, it would still need to be digitally signed by Apple to run on the phone. In the event that Scott chooses to disallow the link (his prerogative, of course), there’s a very good technical piece published on Friday on EFF’s blog, “A Technical Perspective on the Apple iPhone Case,” by Joseph Bonneau, that addresses this and other technical issues.
        Joe has advanced degrees, including a PhD, in Computer Science and Cryptography, he knows of what he speaks. (ObFullDisclosure: we – EFF – will be seeking leave to file an amicus in support of Apple.)
        https://www.eff.org/deeplinks/2016/02/technical-perspective-apple-iphone-case

  8. Patrick Maupin

    Reporting I have seen indicates it was a county IT employee who changed the password. Still a comedy of errors; maybe not orchestrated by the FBI, but certainly preventable by them if they understood th system and were on the ball.

    1. Patrick Maupin

      More recent reporting indicates it was at the FBI’s behest, and that their motives, cspabilities, and strategies are so far beyond your reproach you couldn’t possibly understand.

  9. Syme

    > The short answer is that even if a government agency wrote the code, it would still need to be digitally
    > signed by Apple to run on the phone.

    Assuming the Fort has not already broken Apple’s signing cert…….
    That’s hardly beyond the possible…

    1. Riley

      No need to break the signing cert. They can get a warrant for Apple to surrender the cert as they did to LavaBit.

      1. Patrick Maupin

        Seems unlikely. For a start, unlike Lavabit, Apple can afford the appeals and the fines for contempt, and will get plenty of publicity from millions of sympathetic customers.

        Even in the double plus unhappy scenario where all the judges seem willing to do this and Apple is forced to capitulate, they will probably be able to negotiate the signing of the FBI’s software rather than the relinquishment of the keys.

        OTOH, this is certainly one of the sticks that the FBI will use to get what they want, and they may have a valid point. With profit of hundreds of dollars per phone, Apple is in a position to create, maintain, and use a separate signing key for each phone.

        Apple’s choice to have a single signing key that works on 15% of the phones on the planet — their version of Heinlein’s admonition to “put all your eggs in one basket and then watch that basket” results in a short set of bits that is so valuable that if the NSA isn’t busy trying to crack it, it’s probably because they already have.

  10. Pingback: Comey & Victims: Can You Look Them In The Eye? | Simple Justice

  11. Pingback: FBI Director Comey To Apple: Do As You’re Told

  12. MelK

    As reported by Techdirt today (2/22), it isn’t “Just one phone”. As in, it’s never been just one phone, no matter what the FBI are saying about the case that raised headlines.

Comments are closed.