Dear Ladies and Gentlemen:

The court order which requires Apple to assist law enforcement to open the San Bernardino Terrorism Defendants’ Apple IPhones and other devices is correct and will be affirmed and enforced. Apple is embarrassingly wrong in its idiotic argument that the order jeopardizes Apple customers’ privacy.

Apple’s argument against the court order assumes that allowing law enforcement access to the San Bernardino Defendant’s Apple ‘phone will allow computer hackers worldwide access to all other Apple ‘phones.

That conclusion is based upon another assumption: that American state and federal law enforcement personnel cannot be trusted to maintain Apple’s security outside the specific criminal investigation at hand.

Or, another assumption: that the Apple personnel involved in opening the Apple ‘phone cannot be trusted to maintain Apple’s security outside the specific task of cooperating with the government on this single case.

If Apple cannot trust its own employees, that is Apple’s dilemma: not the American state or federal governments’. If Apple employees are not reliable, trustworthy and ethical, then Apple needs new employees.

If Apple does not trust California state law enforcement personnel in San Bernardino County or within the United States Government, then Apple needs to change its mind.

This entire debate is childish and silly. Apple must obey the court order. Surely Apple has the wherewithal to absolutely guarantee the integrity of the process of opening one telephone to comply with one subpoena.

It is idiotic to conclude that every Apple employee involved in opening this single ‘phone is a thief and a pirate who would leak the password to the world and destroy Apple customers’ privacy worldwide.

If that were true, then Apple’s worldwide security is already in shambles and all customers’ data are already exposed.

It is embarrassing to observe that everyone with an iPad or a Notebook, who can type, now proclaims himself an expert in law, mathematics, engineering, politics, worldwide business and government.

I have watched Tim Cook talk. Bless his heart. He has absolutely no knowledge of anything.

I have no doubt that Apple will be required to open the ‘phone and any other device necessary to this law enforcement investigation.

But not until after every Silicon Valley Hippy has had the opportunity to give a Ted Talk on American Corporate Capitalism and President Dwight David Eisenhower’s Military Industrial Complex.

Have a Dovely.

Sincerely yours,
Caleb Boone.

Dear Nasch:

In this case a search warrant has been issued, after a proper application. That application was made by a law enforcement officer under oath in writing, in the form of an affidavit. The affidavit was detailed and provided to the judge a comprehensive recitation of facts. Those facts established a reasonably articulable suspicion of criminal activity. Further, they established that a third party, Apple, had possession of information necessary to obtain access to the desired evidence, which is reasonably believed to exist inside the Defendant’s IPhone or electronic device.

Even if Apple and the deceased murderer or deceased terrorist had a reasonable expectation of privacy in the evidence which is sought, the search warrant procedure, conducted by a neutral judge or magistrate, sufficiently protects that expectation of privacy. It is legal to pierce the expectation of privacy so long as the search warrant procedure is followed via application by sworn affidavit and independent judicial consideration of the affidavit by a neutral magistrate. That procedure is constitutionally sufficient and complies with the Fourth Amendment requirement that no warrant shall issue except upon probable cause.

Probable cause has been established and the Fourth Amendment has been satisfied. There is probable cause to believe that there is evidence of murders within the dead terrorist’s IPhone. The Judiciary has been fully involved in the issuance of the warrant against the IPhone and other associated orders to obtain the proper passwords or access keys from Apple, which is the manufacturer of the IPhone and the software which is part of the IPhone. There is nothing more to do.

This is similar to countless cases which have involved search warrants or criminal court orders against a landlord to provide a key to a barn occupied by the Defendant, or a key to a Defendant’s apartment, or physical access to a treehouse used by a Defendant. The landlords or owners of barns or yards may not be guilty of crimes, but they have access to the places where evidence of crimes generated by Defendants may be found because it has been left there by criminal suspects or criminal Defendants.

In this case the evidence is electronic and the access keys have fancy electronic names. In this case there are hundreds of millions or billions of people worldwide who have similar devices. Further, the news story about this case has been broadcast in excruciating detail on the internet. There is a tremendous financial incentive for Apple executives to make public pronouncements via the internet to make it appear they are zealous to protect the widely-perceived privacy rights of their customers. Therefore, those millions or billions of people who are Apple customers worldwide have the luxury of complete immediate electronic access to each and every detail of this case. They can read about this existing legal dispute and they can know that the accused, dead, San Bernardino terrorists or murderer’s IPhone is about to be opened pursuant to a court order, in each minute detail, moment-by-moment.

However, the widely-perceived privacy rights of Apple and its customers do not exist here. This particular legal scenario involves evidence of multiple, gruesome, highly-public murders which are quite reasonably suspected as having been committed by publicly-known and observed terrorists or murderers. Those terrorists or murderers possessed IPhones and at least one of them still exists and probably contains invaluable information about the murders which they committed.

The dead murderers may have some type of former expectation of privacy in the information at issue, but the government has an overriding interest in its disclosure. Apple may have a business expectation of privacy and secrecy in its passwords, software and computers or computer-like devices, but the government has an overriding interest in its disclosure for the limited purposes of this case to prosecute these known terrorists or known murderers. Those interests are legitimate. The privacy of the murderers and Apple has been properly protected and respected in this excruciatingly-drawn-out and painstakingly-antiseptic legal process. Surely the court has ordered that everything which must be strictly safeguarded and protected, will be very carefully protected, by the conduct of the process of opening the IPhone and other associated devices in total secrecy and security under the watchful eyes of the appropriate Apple personnel and law enforcement officers or agents.

That is good enough. Good heavens.

Now, below, I will provide for you an excerpt from a Tenth Circuit Court of Appeals opinion on this point. It contains statements which recognize both sides of this issue, but the decision in the case quoted was in favor of disclosure.

No two cases are exactly alike, but there is overwhelming logic and legal support for the disclosure of all the information which is sought in this case, using the proper security procedures to protect Apple’s business interests in the copyrights and intellectual property (computer programs, passwords, etc.) it owns.

The case I have chosen is: United States v. Perrine, 518 F.3d 1196, 1204-1205 (10th Cir. Kan. 2008). The Kansas Federal District Court opinion by Senior District Judge Monti Belot which was affirmed, can be found on Westlaw at: 2006 WL 1232852

The District Court opinion was not published in the Federal Supplement but of course is readily available on Westlaw.

Following is the excerpt I have chosen from pages 1204 and 1205 of the published Tenth Circuit Opinion. I have not enclosed it in quotation marks:

Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation. See, e.g., Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001) (holding, in a non-criminal context, that “computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person-the system operator”); United States v. Hambrick, 225 F.3d 656 (4th Cir.2000) (unpublished), affirming United States v. Hambrick, 55 F.Supp.2d 504, 508–09 (W.D.Va.1999) (holding that there was no legitimate expectation of privacy in noncontent customer information provided to an internet service provider by one of its customers); United States v. D’Andrea, 497 F.Supp.2d 117, 120 (D.Mass.2007) (“The Smith line of cases has led federal courts to uniformly conclude that internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other noncontent data to which service providers must have access.”); Freedman v. America Online, Inc., 412 F.Supp.2d 174, 181 (D.Conn.2005) (“In the cases in which the issue has been considered, courts have universally found that, for purposes of the Fourth Amendment, a subscriber does not maintain a reasonable expectation of privacy with respect to his subscriber information.”); United States v. Sherr, 400 F.Supp.2d 843, 848 (D.Md.2005) (“The courts that have already addressed this issue … uniformly have found that individuals have no Fourth Amendment privacy interest in subscriber information given to an ISP.”); United States v. Cox, 190 F.Supp.2d 330, 332 (N.D.N.Y.2002) (same); United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan.2000) (“Defendant’s constitutional rights were not violated when [internet provider] divulged his subscriber information to the government. Defendant has not demonstrated an objectively reasonable legitimate expectation of privacy in his subscriber information.”). Cf. United States v. Forrester, 512 F.3d 500, 510 (9th Cir.2008) (“e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet *1205 service providers for the specific purpose of directing the routing of information.”); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir.2004) (“Individuals generally possess a reasonable expectation of privacy in their home computers…. They may not, however, enjoy such an expectation of privacy in transmissions over the Internet or e-mail that have already arrived at the recipient.”).

Please do not misinterpret the “expectation of privacy” language above. That language is significant only if there has been no judicially-authorized search warrant. An expectation of privacy is adequately protected and can be pierced through, if the warrant procedure is followed and probable cause to issue the warrant exists, and a neutral judge issues the warrant. That surely has occurred here.

The only difference between this situation and countless others is that instead of a small kaffeeklatsch of five lawyers discussing this case at a restaurant near the courthouse, we have an international kaffeeklatsch of two billion Apple IPhone subscribers, all members of the new technology middle-class, who have attended high school or college, and all of whom fancy themselves graduates of Harvard Law School.

Magna Cum Laude.

Have a Dovely.

Sincerely yours,
Caleb Boone.