I realize my last letter did not contain an analysis of your argument that Apple should not be required to create or devise anything new, such as a new computer program, for the government's benefit.
I believe your argument is incorrect in this case.
If the thing which is new is, practically-speaking, nothing more than a key to open a door which cannot be opened any other way, then Apple must be compelled to create that key.
This is no different than requiring Google to open email accounts:
Please see: In Re Search of Google Email Accounts, 99 F.Supp.3d 992 (D. Alaska, 2015).
I understand that in the above case, Google was not required to create a list of messages for the government.
However, Google was required to unlock the door to provide the messages to the government.
In the San Bernardino case, the government cannot open the IPhone without destroying the data on the IPhone, because the government does not know how to do that. The government does not have the right non-destructive programs or passwords.
Those programs, sophisticated though they may be, are, therefore, in this case, functionally, nothing more than simple metal keys to open a standard metal deadbolt lock in a standard wooden door.
Law enforcement can use them and protect them and Apple will not be harmed.
I believe law enforcement officers are doing their job because I can drive to work and not be run over by a herd of buffalo.
I will take anything that I can get.
I would rather live in peace and safety and wear a double-knit plaid suit than live in terror and dress in haute couture.
I would rather make Apple write a Neiman-Marcus program and live in security than allow the San Bernardino terrorists to call Osama Bin Laden one more time.
There are several dramatic specific news stories about horrible crimes in the United States, which have been widely discussed in the American media. Many people have expressed extremely negative opinions about the integrity of law enforcement personnel at all levels.
However, these are anecdotal. They are truly uncharacteristic of the proven, long-term, national trend demonstrated by nationwide statistics gathered during the last twenty-two years.
The FBI publishes national "Crime in the U. S." statistics in tabular form.
The following table presents the nationwide trend from 1994 to 2014:
The first table demonstrates that crime in absolute numbers has dramatically decreased from 1994 to 2014 in all categories. In some categories it has decreased by about 50%. This is true despite an increase in population of about 23% from roughly 260 million to 320 million. In my opinion, that is stunning.
There was an overall increase of 1.7 percent from 2014 to 2015 when comparing the first six months of both years, and this is shown in the second table. However, this hardly diminishes the awe-inspiring dramatic decrease overall from 1994 to 2014, which is the overwhelming trend shown in the first table.
I could not find any FBI tables for the period from July, 2015 to the present.
These tables prove I am exactly right. Law enforcement has reduced crime dramatically during the last twenty-two years in the United States.
The European Institute for Crime Prevention and Control in Helsinki, Finland, published a study of crime worldwide in 2010, and it may be found at:
I have not viewed the entire document, but I have scanned the first sixty or more pages. The United States is in the lower one-third on some tables such as one table for murder but the United States ranks in the highest quartile in crimes like assault, rape, theft and burglary.
I believe my statements about American law enforcement are right: our law enforcement agencies have made excellent progress in the last twenty-two years in cutting crime in the United States in half in many categories.
This proves my statement that law enforcement personnel in the United States are trustworthy, reliable, honest and ethical.
They can surely be trusted to preserve the secrecy, security and privacy of Apple's products, designs, programs, passwords and other trade secrets.
I understand that you may not agree with me.
I respect your right to your opinion, and I realize that it may be completely contrary to mine.
I consider that our exchange is conducted as gentlemen and in the spirit of good-natured debate.
I typed my reply to you below, before reading this.
First, I view the order as requiring Apple to do whatever is necessary to open the phone.
If opening a home's front door at the command of a law enforcement officer holding a court-issued search warrant standing outside the door requires someone sitting down inside the house to stand up and walk to the door and open it with his hand, then the command of that law enforcement officer to open the door implies a command that someone create, assemble and contrive the function of the whole complex array of nerves, blood vessels, bones, sinews, muscles, tendons, skin, etc., which comprise the human body to exist, function, operate and act to open the door.
If there were no other way of opening the door than by the act of a living person inside the house, then that law enforcement officer's simple spoken command does require all those things, and, implicates the act of Creation, if you will. Surely that is the height of unfathomable scientific complexity.
If that were true, every simple knock-and-announce case would fail because it would require God to create a person.
The novelty and intricacy of computers invites us to explore the complexity of the ordered act of opening an IPhone. However, the intellectual attractiveness of that factual aspect of this legal issue should not cloud our judgment or distract us from the simplicity of the act which has been ordered by the court.
This reminds me of a portion of a children's song written as a medley from Walt Disney's "Snow White:"
"Open the door, open the door, cried seven little men; One at a time they knocked on the door: [knock-knock-knock-knock-knock-knock-knock!] Open the door, open the door! [etc.]"
All we want the Apple Corporation to do is open the door.
Whatever it takes to open the door can be properly ordered by the court.
The fact that it is a very complicated, computer door, is of no consequence.
It is still a door which must be opened.
If it has to be opened by a copyrighted, trademarked key, invented for the occasion by Alexander Graham Bell, then so be it.
It is still a simple key which is the only device which can actually open the door.
Whenever, however, whoever, whatever must occur to make the key, the court absolutely has the power to command, to accomplish the legitimate ends of federal or state law enforcement.
Now, we may not agree.
You may have a contrary opinion.
If so, I understand that.
And, I consider that our exchange has been a gentlemanly good-natured debate.
I am an actively practicing trial lawyer in state and federal courts. I have practiced since 1982. My practice is general, but my cases are concentrated in representation of plaintiffs arising out of torts of negligence causing personal injury and property damage and criminal defense.
In my opinion, Apple should obey a court order to open the IPhone owned by one of the recent San Bernardino terrorists or murderers, who is now deceased.
The issue has prompted many articles which essentially glorify Apple Chariman Tim Cook as a guardian of the Constitution, or a champion of the privacy rights of people worldwide.
I disagree with the thesis of all those articles.
A good example of such articles is one by Steve Petrow, for USA Today. Mr. Petrow wrote the article below on Thursday, February 24, 2016:
The article is about Mr. Petrow's experience of writing and sending anti-government, pro-privacy comments or messages/draft articles on this issue, using a computer during a 'plane flight. Mr. Petrow used the airline's on-board or in-flight wireless internet service to send his anti-government, pro-Apple-privacy messages during the flight. At the end of the flight, another passenger on the flight, a stranger, stopped Mr. Petrow and introduced himself. This anonymous passenger told Mr. Petrow he had hacked into all of Mr. Petrow's in-flight wireless communications and those of other passengers. The hacker discussed his support for Apple's privacy arguments with Mr. Petrow. That is, the hacker stated he agreed with Apple's assertion that disclosing its passwords to the government for the San Bernardino investigation would easily allow worldwide hacking into Apple's customers' private accounts on an indiscriminate basis by anyone. Afterward, Mr. Petrow reflected upon the poignancy of the hacker's comments, approving them, and noting how they were vividly illustrated by the hacker's own act of in-flight hacking of his personal communications.
Mr. Petrow's article is interesting not for its insight but for its stunning irony and Mr. Petrow's naiveté.
The hacker, who spoke to Mr. Petrow after the flight, violated the law by obtaining unauthorized access to Mr. Petrow's communications, whether they were being transmitted or were in electronic storage, or in a stored state. He admitted he hacked into Mr. Petrow's communications or hacked into Mr. Petrow's stored information because he said so, to Mr. Petrow: "I hacked." Hacking is getting into something you are not supposed to get into. It is a slang word for electronic pilfering or electronic stealing.
Hacking is electronic pick-pocketing.
Intercepting electronic transmissions is a federal crime under 18 U.S.C. 2511.
Obtaining access to stored electronic information is also a federal crime under 18 U.S.C. 2701.
Please see:
U.S. v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. Wisconsin 2010)
and
Shefts v. Petrakis, 2012 WL 4049484 (D.C., C.D., Ill. 2012)
The irony in Mr. Petrow's failure to understand that he was the victim of a crime emphasizes the fallacy of his argument.
He portrays the anonymous airline-passenger-hacker as an angel in disguise.
He ignorantly overlooks the hacker's corrupt, evil nature and misinterprets it as virtue.
He receives the hacker's words as wisdom when in fact they are mendacious.
The hacker's message, and that of Mr. Petrow's article, is that we must resist any and all government access to private information even if it would save our lives.
That is, we should be willing to die at the hands of a terrorist to protect that terrorist's right to privacy in his personal IPhone messages.
The hacker has failed to recognize the horrible evil inconsistency in his position. Mr. Petrow has also failed to perceive that same self-evident inconsistency in his position, which is the same as the hacker's.
Terrorism or multiple murder is wrong. It is a horrible crime. The government must be able to conduct the proper investigations necessary to detect it, prosecute it, punish it and prevent it. Such investigations further a basic function of government: enforcement of law for the physical protection of the lives of citizens in our representative republic.
We are citizens of that republic. We rely every day on the integrity of our elected officials and civil servants such as policemen, sheriff's officers, detectives, United States Marshals, F.B.I. Agents, C.I.A. Agents, N.S.A. Agents, Homeland Security Agents, Treasury Agents and a host of countless other state, federal and local law enforcement agents and officers for our protection.
We repose trust in those persons.
We expect them to perform their tasks with honesty and integrity.
We conduct our daily lives based upon the assumption that they will maintain proper security, secrecy and privacy of the extremely sensitive information which they constantly obtain, utilize, review and read.
The premise of Mr. Petrow's article is that everyone in the categories I have mentioned above is dishonest, opportunistic, evil and untrustworthy.
He implies, in his article, that each and every one of those persons will use every bit of law enforcement investigative information obtained for improper purposes and will disclose it, disseminate it and spread it abroad.
If we believe Mr. Petrow is right, then there is no safety, no protection, no privacy, no security and no integrity in anything and anarchy reigns at every level of local, state and federal government throughout the United States. I must state that Mr. Petrow is wrong. The anonymous hacker is wrong.
KidOmaha, I believe your conclusion is the same. That is, I believe that you assume that, if allowed by the courts, the activities of law enforcement in retrieving this information from the Apple Phone will be stupid, bungling, insecure, open to hacking from outside, and completely vulnerable to copying and theft by hackers intruding into the law enforcement computers used to perform the IPhone data extraction.
I believe law enforcement is better than that.
I believe that Apple personnel, cooperating wholeheartedly and expertly with law enforcement personnel, will be able to extract the data and no hackers will be able to avail themselves of the programs or passwords which Apple may have to create or assign to facilitate the law enforcement investigation.
They may have to do it inside a fully self-contained vault buried two miles underneath the ground, lined with sixty feet of solid lead on all six sides with solid lead radiating outward sixty feet from all eight corners, but it can be done.
I must clearly state the law in this area. I believe you will agree with me.
A criminal investigation is the investigation of illegal activity by one or more suspected criminals. If probable cause exists, a law enforcement officer may apply to a judge for the issuance of a search warrant to obtain otherwise private, secret information in the possession of one or more suspected criminals.
A search warrant is a detailed written order signed by a judge. It is based upon detailed written or spoken statements, under oath, provided by law enforcement personnel or private citizens, to the judge. The judge hears or reads and analyzes that sworn testimony or written statements before issuing the warrant.
The judge may either issue a warrant or refuse to do so if he believes the information does not establish probable cause.
Probable cause is a clear, articulable suspicion of criminal activity.
If probable cause does not exist, a warrant will not issue, or, evidence obtained without probable cause can be suppressed by a judge after it is obtained. If all evidence obtained against a criminal defendant was obtained in searches conducted without probable cause, or was the "fruit of the poisonous tree" because it was evidence which was obtained as a result of other unlawfully obtained evidence, then a criminal's conviction will be overturned or nullified and the convicted criminal will be exonerated and he will go free.
A criminal investigation is limited to the case within which it is conducted. Computer passwords which are obtained and used in that criminal investigation are limited in use to that criminal investigation.
A search warrant issued in one case cannot be used to conduct a search in another case, with the exception that inadvertently discovered evidence of an unrelated crime (crime B) found during the execution of a search warrant issued for suspected crime A may become the premise of a new probable cause affidavit in support of a new search warrant to investigate suspected crime B.
Each time a new warrant is requested, a judge must make a new determination of probable cause, and a new warrant must be issued based upon new facts and new circumstances relevant to that new case.
We all trust law enforcement officers and judges to follow the law and the procedure I have described generally above.
I am not willing to die to further the aims of terrorists and murderers.
The illogic of Mr. Petrow's thesis is similar to the illogic of the following argument I have read, made recently in many articles by Christian authors against other Christians.
The argument is as follows.
If an armed mass-murderer who is not Christian, holding a room full of hostages in a high school, says to the hostages, "Stand up if you are a Christian and are a follower of Jesus," and several of those students being held hostage hide and do not stand up, then Christian authors have written that those hostages who do not stand up are, truly, not Christian.
Of course, any high school student who would stand up in such a situation would surely be shot by the armed hostage-taker and killed.
The fallacy in the argument that the reluctant hostages are not true Christians, is obvious. The argument assumes that the motives of the gunman are pure and holy. Of course his motives are evil. Standing up will do only one thing: further his evil motive to commit a murder. Standing up will bring no glory to God or Jesus. Standing up will not spread the Gospel of Jesus. Standing up will only cause senseless loss of life.
Standing up in that scenario would be exactly like Jesus acceding to Satan's challenge to Jesus that He cast Himself down from a high point, or pinnacle of the temple:
"And he brought him to Jerusalem, and set him on a pinnacle of the temple, and said unto him, If thou be the Son of God, cast thyself down from hence: for it is written, He shall give his angels charge over thee, to keep thee: and in their hands they shall bear thee up, lest at any time thou dash thy foot against a stone. And Jesus answering said unto him, It is said, Thou shalt not tempt the Lord thy God. And when the devil had ended all the temptation, he departed from him for a season." Luke 4:9-13.
It is just as illogical to accuse the sensible high-schoolers who did not stand up of impiety as it is to accuse sensible citizens who cooperate with legitimate law enforcement investigations of being unpatriotic.
We must not allow the novelty and intricacy of computers or the cachet of Steve Jobs and Tim Cook to cloud our understanding of the basic principles of good law enforcement essential to wholesome peace and safety.
KidOmaha, thank you for reading my response. I realize you may not agree with everything I have typed. Whether you agree or not, I offer my statements in a spirit of good-natured, gentlemanly debate.
Please see the 5:15 a.m. CT (US) reply which I typed this morning for Nasch below.
I disagree with you.
I admit that I have not read all the Orders issued in this case, but I don't need to. I don't need to know the precise procedural path which this case has taken.
All I need to know is the Constitution.
The United States Constitution, Fourth Amendment, and the hundreds of thousands of cases construing it, supports the Order to Apple to disclose or provide the information necessary to open the IPhone, just as if it were a metal key to a door to the Defendant's apartment and the murder weapon were inside the apartment.
I will read the articles and this discussion in full, if I have enough time after hours.
I will provide one short comment for the moment.
I understand that Apple objects in part because it believes that what the court order requires it to do is create, out of whole cloth, what it contends does not exist: a new program, password or unlocking device which does not exist.
Apple believes that, at most, it should not be required to do anything more than produce what already exists: not do the work of the court system for the courts, or do law enforcement's work for law enforcement.
(Again, I realize that Apple has many more reasons for its objections than this, but I am just concentrating on this one reason for the moment.)
I believe Apple is clearly wrong. Its objection ignores logic.
Apple created the IPhone. Only Apple can properly open an IPhone and only Apple can engineer a device which completely and perfectly will remove all the data from an IPhone, including all the little scraps, odds and ends, which blunt-force law enforcement techniques would either destroy, lose or never recognize.
Therefore, it is like providing the key to a barn.
The barn is locked and the officer wants to get inside the barn.
He needs a key to do that.
The farmer is the only one who has the key.
The farmer needs to give him the key.
If the farmer has lost the key, the farmer must provide entry to the barn by giving the officer another key, or pointing out a rope which will pull up a sliding wooden door which the officer did not notice, so the officer can go inside through the other, sliding door, without having to use a key (now lost) to the main door.
The farmer did not commit a crime but the farmer has evidence of the crime committed by his farmhand, inside the barn: a gun, or a knife.
The farmer is ordered by the court to open the barn for the officer by whatever means are available.
The farmer may not have to re-program the old wooden barn, but if it were a modern, year-3000 Star-Trek barn and could only be entered using an elaborate computer program, then the farmer would have to rewrite the program, or re-wire the barn, or re-configure a new password, or invent a device which would open the barn, manufacture the device, and give it to the officer, if necessary.
That is what it means to fully comply with a lawful court order.
The farmer built the barn, and the farmer hired the farmhand.
The farmer may have made an error in judgment in hiring the murderous farmhand.
But the farmer must abide the consequences of his poor judgment.
Apple may have exercised poor judgment in selling an IPhone to the terrorist couple.
Apple must now abide the consequences of its decision to sell that IPhone to that terrorist couple.
Of course, it is not a question of poor judgment, but, on the other hand, there is nothing illegal in Apple requiring a criminal, personal or other background check before a prospective customer can purchase an IPhone.
No one has the Constitutional right to buy an IPhone.
Many countries in which people can buy IPhones do not have a Constitution or Bill of Rights anyway.
But of course the Bill of Rights and the Constitution do not apply to this aspect (choice-of-customer) of this private commercial transaction if the restriction on purchasing is legitimate, logical and not otherwise a violation of American (or other countries') anti-discrimination laws, which it would not be.
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.
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.
Techdirt has not posted any stories submitted by CalebBoone.
Re: Re: Apple Must Open The San Bernardino Terrorist's IPhone.
Dear KidOmaha:
I realize my last letter did not contain an analysis of your argument that Apple should not be required to create or devise anything new, such as a new computer program, for the government's benefit.
I believe your argument is incorrect in this case.
If the thing which is new is, practically-speaking, nothing more than a key to open a door which cannot be opened any other way, then Apple must be compelled to create that key.
This is no different than requiring Google to open email accounts:
Please see: In Re Search of Google Email Accounts, 99 F.Supp.3d 992 (D. Alaska, 2015).
I understand that in the above case, Google was not required to create a list of messages for the government.
However, Google was required to unlock the door to provide the messages to the government.
In the San Bernardino case, the government cannot open the IPhone without destroying the data on the IPhone, because the government does not know how to do that. The government does not have the right non-destructive programs or passwords.
Those programs, sophisticated though they may be, are, therefore, in this case, functionally, nothing more than simple metal keys to open a standard metal deadbolt lock in a standard wooden door.
Law enforcement can use them and protect them and Apple will not be harmed.
Have a Dovely.
Sincerely yours,
Caleb Boone.
Apple must provide them.
Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Uriel238:
I apologize for offending you.
Please forgive me.
I only meant to debate in polite good humor.
Sincerely yours,
Caleb Boone.
Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Nasch:
We must disagree.
I believe law enforcement officers are doing their job because I can drive to work and not be run over by a herd of buffalo.
I will take anything that I can get.
I would rather live in peace and safety and wear a double-knit plaid suit than live in terror and dress in haute couture.
I would rather make Apple write a Neiman-Marcus program and live in security than allow the San Bernardino terrorists to call Osama Bin Laden one more time.
Collect.
To buy a dozen cruise missiles.
Have a Dovely.
Sincerely yours,
Caleb Boone.
Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Nasch:
I have been following current events.
There are several dramatic specific news stories about horrible crimes in the United States, which have been widely discussed in the American media. Many people have expressed extremely negative opinions about the integrity of law enforcement personnel at all levels.
However, these are anecdotal. They are truly uncharacteristic of the proven, long-term, national trend demonstrated by nationwide statistics gathered during the last twenty-two years.
The FBI publishes national "Crime in the U. S." statistics in tabular form.
The following table presents the nationwide trend from 1994 to 2014:
https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-1
The next table presents the FBI's nationwide "preliminary semiannual estimate" change for January to June, when comparing 2014 to 2015:
https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2015/preliminary-semiannual-uniform-crime-report-januaryjune-2015/tables/table-1
The first table demonstrates that crime in absolute numbers has dramatically decreased from 1994 to 2014 in all categories. In some categories it has decreased by about 50%. This is true despite an increase in population of about 23% from roughly 260 million to 320 million. In my opinion, that is stunning.
There was an overall increase of 1.7 percent from 2014 to 2015 when comparing the first six months of both years, and this is shown in the second table. However, this hardly diminishes the awe-inspiring dramatic decrease overall from 1994 to 2014, which is the overwhelming trend shown in the first table.
I could not find any FBI tables for the period from July, 2015 to the present.
These tables prove I am exactly right. Law enforcement has reduced crime dramatically during the last twenty-two years in the United States.
The European Institute for Crime Prevention and Control in Helsinki, Finland, published a study of crime worldwide in 2010, and it may be found at:
http://www.unodc.org/documents/data-and-analysis/Crime-statistics/International_Statistics_on_Crime_and_Justice.pdf
I have not viewed the entire document, but I have scanned the first sixty or more pages. The United States is in the lower one-third on some tables such as one table for murder but the United States ranks in the highest quartile in crimes like assault, rape, theft and burglary.
I believe my statements about American law enforcement are right: our law enforcement agencies have made excellent progress in the last twenty-two years in cutting crime in the United States in half in many categories.
This proves my statement that law enforcement personnel in the United States are trustworthy, reliable, honest and ethical.
They can surely be trusted to preserve the secrecy, security and privacy of Apple's products, designs, programs, passwords and other trade secrets.
I understand that you may not agree with me.
I respect your right to your opinion, and I realize that it may be completely contrary to mine.
I consider that our exchange is conducted as gentlemen and in the spirit of good-natured debate.
Thank you for your reply.
Have a Dovely.
Sincerely yours,
Caleb Boone.
Re: Re: Re: Re: Apple Must Open The San Bernardino Terrorist's IPhone.
Dear KidOmaha:
I typed my reply to you below, before reading this.
First, I view the order as requiring Apple to do whatever is necessary to open the phone.
If opening a home's front door at the command of a law enforcement officer holding a court-issued search warrant standing outside the door requires someone sitting down inside the house to stand up and walk to the door and open it with his hand, then the command of that law enforcement officer to open the door implies a command that someone create, assemble and contrive the function of the whole complex array of nerves, blood vessels, bones, sinews, muscles, tendons, skin, etc., which comprise the human body to exist, function, operate and act to open the door.
If there were no other way of opening the door than by the act of a living person inside the house, then that law enforcement officer's simple spoken command does require all those things, and, implicates the act of Creation, if you will. Surely that is the height of unfathomable scientific complexity.
If that were true, every simple knock-and-announce case would fail because it would require God to create a person.
The novelty and intricacy of computers invites us to explore the complexity of the ordered act of opening an IPhone. However, the intellectual attractiveness of that factual aspect of this legal issue should not cloud our judgment or distract us from the simplicity of the act which has been ordered by the court.
This reminds me of a portion of a children's song written as a medley from Walt Disney's "Snow White:"
"Open the door, open the door, cried seven little men;
One at a time they knocked on the door: [knock-knock-knock-knock-knock-knock-knock!]
Open the door, open the door! [etc.]"
All we want the Apple Corporation to do is open the door.
Whatever it takes to open the door can be properly ordered by the court.
The fact that it is a very complicated, computer door, is of no consequence.
It is still a door which must be opened.
If it has to be opened by a copyrighted, trademarked key, invented for the occasion by Alexander Graham Bell, then so be it.
It is still a simple key which is the only device which can actually open the door.
Whenever, however, whoever, whatever must occur to make the key, the court absolutely has the power to command, to accomplish the legitimate ends of federal or state law enforcement.
Now, we may not agree.
You may have a contrary opinion.
If so, I understand that.
And, I consider that our exchange has been a gentlemanly good-natured debate.
Have a Dovely.
Sincerely yours,
Caleb Boone.
Re: Re: Apple Must Open The San Bernardino Terrorist's IPhone.
Dear KidOmaha:
I have read your reply of 4:55 a.m. today.
I am an actively practicing trial lawyer in state and federal courts. I have practiced since 1982. My practice is general, but my cases are concentrated in representation of plaintiffs arising out of torts of negligence causing personal injury and property damage and criminal defense.
In my opinion, Apple should obey a court order to open the IPhone owned by one of the recent San Bernardino terrorists or murderers, who is now deceased.
The issue has prompted many articles which essentially glorify Apple Chariman Tim Cook as a guardian of the Constitution, or a champion of the privacy rights of people worldwide.
I disagree with the thesis of all those articles.
A good example of such articles is one by Steve Petrow, for USA Today. Mr. Petrow wrote the article below on Thursday, February 24, 2016:
http://www.usatoday.com/…/got-hacked-my-mac-while…/80844720/
The article is about Mr. Petrow's experience of writing and sending anti-government, pro-privacy comments or messages/draft articles on this issue, using a computer during a 'plane flight. Mr. Petrow used the airline's on-board or in-flight wireless internet service to send his anti-government, pro-Apple-privacy messages during the flight. At the end of the flight, another passenger on the flight, a stranger, stopped Mr. Petrow and introduced himself. This anonymous passenger told Mr. Petrow he had hacked into all of Mr. Petrow's in-flight wireless communications and those of other passengers. The hacker discussed his support for Apple's privacy arguments with Mr. Petrow. That is, the hacker stated he agreed with Apple's assertion that disclosing its passwords to the government for the San Bernardino investigation would easily allow worldwide hacking into Apple's customers' private accounts on an indiscriminate basis by anyone. Afterward, Mr. Petrow reflected upon the poignancy of the hacker's comments, approving them, and noting how they were vividly illustrated by the hacker's own act of in-flight hacking of his personal communications.
Mr. Petrow's article is interesting not for its insight but for its stunning irony and Mr. Petrow's naiveté.
The hacker, who spoke to Mr. Petrow after the flight, violated the law by obtaining unauthorized access to Mr. Petrow's communications, whether they were being transmitted or were in electronic storage, or in a stored state.
He admitted he hacked into Mr. Petrow's communications or hacked into Mr. Petrow's stored information because he said so, to Mr. Petrow: "I hacked."
Hacking is getting into something you are not supposed to get into. It is a slang word for electronic pilfering or electronic stealing.
Hacking is electronic pick-pocketing.
Intercepting electronic transmissions is a federal crime under 18 U.S.C. 2511.
Obtaining access to stored electronic information is also a federal crime under 18 U.S.C. 2701.
Please see:
U.S. v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. Wisconsin 2010)
and
Shefts v. Petrakis, 2012 WL 4049484 (D.C., C.D., Ill. 2012)
The irony in Mr. Petrow's failure to understand that he was the victim of a crime emphasizes the fallacy of his argument.
He portrays the anonymous airline-passenger-hacker as an angel in disguise.
He ignorantly overlooks the hacker's corrupt, evil nature and misinterprets it as virtue.
He receives the hacker's words as wisdom when in fact they are mendacious.
The hacker's message, and that of Mr. Petrow's article, is that we must resist any and all government access to private information even if it would save our lives.
That is, we should be willing to die at the hands of a terrorist to protect that terrorist's right to privacy in his personal IPhone messages.
The hacker has failed to recognize the horrible evil inconsistency in his position. Mr. Petrow has also failed to perceive that same self-evident inconsistency in his position, which is the same as the hacker's.
Terrorism or multiple murder is wrong. It is a horrible crime. The government must be able to conduct the proper investigations necessary to detect it, prosecute it, punish it and prevent it. Such investigations further a basic function of government: enforcement of law for the physical protection of the lives of citizens in our representative republic.
We are citizens of that republic. We rely every day on the integrity of our elected officials and civil servants such as policemen, sheriff's officers, detectives, United States Marshals, F.B.I. Agents, C.I.A. Agents, N.S.A. Agents, Homeland Security Agents, Treasury Agents and a host of countless other state, federal and local law enforcement agents and officers for our protection.
We repose trust in those persons.
We expect them to perform their tasks with honesty and integrity.
We conduct our daily lives based upon the assumption that they will maintain proper security, secrecy and privacy of the extremely sensitive information which they constantly obtain, utilize, review and read.
The premise of Mr. Petrow's article is that everyone in the categories I have mentioned above is dishonest, opportunistic, evil and untrustworthy.
He implies, in his article, that each and every one of those persons will use every bit of law enforcement investigative information obtained for improper purposes and will disclose it, disseminate it and spread it abroad.
If we believe Mr. Petrow is right, then there is no safety, no protection, no privacy, no security and no integrity in anything and anarchy reigns at every level of local, state and federal government throughout the United States.
I must state that Mr. Petrow is wrong. The anonymous hacker is wrong.
KidOmaha, I believe your conclusion is the same. That is, I believe that you assume that, if allowed by the courts, the activities of law enforcement in retrieving this information from the Apple Phone will be stupid, bungling, insecure, open to hacking from outside, and completely vulnerable to copying and theft by hackers intruding into the law enforcement computers used to perform the IPhone data extraction.
I believe law enforcement is better than that.
I believe that Apple personnel, cooperating wholeheartedly and expertly with law enforcement personnel, will be able to extract the data and no hackers will be able to avail themselves of the programs or passwords which Apple may have to create or assign to facilitate the law enforcement investigation.
They may have to do it inside a fully self-contained vault buried two miles underneath the ground, lined with sixty feet of solid lead on all six sides with solid lead radiating outward sixty feet from all eight corners, but it can be done.
I must clearly state the law in this area. I believe you will agree with me.
A criminal investigation is the investigation of illegal activity by one or more suspected criminals. If probable cause exists, a law enforcement officer may apply to a judge for the issuance of a search warrant to obtain otherwise private, secret information in the possession of one or more suspected criminals.
A search warrant is a detailed written order signed by a judge. It is based upon detailed written or spoken statements, under oath, provided by law enforcement personnel or private citizens, to the judge. The judge hears or reads and analyzes that sworn testimony or written statements before issuing the warrant.
The judge may either issue a warrant or refuse to do so if he believes the information does not establish probable cause.
Probable cause is a clear, articulable suspicion of criminal activity.
If probable cause does not exist, a warrant will not issue, or, evidence obtained without probable cause can be suppressed by a judge after it is obtained. If all evidence obtained against a criminal defendant was obtained in searches conducted without probable cause, or was the "fruit of the poisonous tree" because it was evidence which was obtained as a result of other unlawfully obtained evidence, then a criminal's conviction will be overturned or nullified and the convicted criminal will be exonerated and he will go free.
A criminal investigation is limited to the case within which it is conducted.
Computer passwords which are obtained and used in that criminal investigation are limited in use to that criminal investigation.
A search warrant issued in one case cannot be used to conduct a search in another case, with the exception that inadvertently discovered evidence of an unrelated crime (crime B) found during the execution of a search warrant issued for suspected crime A may become the premise of a new probable cause affidavit in support of a new search warrant to investigate suspected crime B.
Each time a new warrant is requested, a judge must make a new determination of probable cause, and a new warrant must be issued based upon new facts and new circumstances relevant to that new case.
We all trust law enforcement officers and judges to follow the law and the procedure I have described generally above.
I am not willing to die to further the aims of terrorists and murderers.
The illogic of Mr. Petrow's thesis is similar to the illogic of the following argument I have read, made recently in many articles by Christian authors against other Christians.
The argument is as follows.
If an armed mass-murderer who is not Christian, holding a room full of hostages in a high school, says to the hostages, "Stand up if you are a Christian and are a follower of Jesus," and several of those students being held hostage hide and do not stand up, then Christian authors have written that those hostages who do not stand up are, truly, not Christian.
Of course, any high school student who would stand up in such a situation would surely be shot by the armed hostage-taker and killed.
The fallacy in the argument that the reluctant hostages are not true Christians, is obvious. The argument assumes that the motives of the gunman are pure and holy. Of course his motives are evil. Standing up will do only one thing: further his evil motive to commit a murder. Standing up will bring no glory to God or Jesus. Standing up will not spread the Gospel of Jesus. Standing up will only cause senseless loss of life.
Standing up in that scenario would be exactly like Jesus acceding to Satan's challenge to Jesus that He cast Himself down from a high point, or pinnacle of the temple:
"And he brought him to Jerusalem, and set him on a pinnacle of the temple, and said unto him, If thou be the Son of God, cast thyself down from hence: for it is written, He shall give his angels charge over thee, to keep thee: and in their hands they shall bear thee up, lest at any time thou dash thy foot against a stone. And Jesus answering said unto him, It is said, Thou shalt not tempt the Lord thy God. And when the devil had ended all the temptation, he departed from him for a season." Luke
4:9-13.
It is just as illogical to accuse the sensible high-schoolers who did not stand up of impiety as it is to accuse sensible citizens who cooperate with legitimate law enforcement investigations of being unpatriotic.
We must not allow the novelty and intricacy of computers or the cachet of Steve Jobs and Tim Cook to cloud our understanding of the basic principles of good law enforcement essential to wholesome peace and safety.
KidOmaha, thank you for reading my response. I realize you may not agree with everything I have typed. Whether you agree or not, I offer my statements in a spirit of good-natured, gentlemanly debate.
Sincerely yours,
Caleb Boone.
Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Nurse Chapel:
"I'll sit on the warp engines and nurse 'em myself!"
Er, I mean, Scotty.
But yes, you're right.
"He will prick that annual blister: marriage to deceased wife's sister."
-- W. S. Gilbert, "Iolanthe."
I will prick this thrice-weekly blister: "Don't you dare touch my IPhone, Mister!"
I will yank out the full-breach baby with my bare hands, slathered in olive oil to make the delivery that much smoother!
Have a Dovely.
Sincerely Yours,
CALEB BOONE.
Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Uranium 238:
Thank you for your approval.
Have a Dovely.
Sincerely yours,
Caleb Boone.
Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Miss Higgins, Uriel-238, Nasch, M2 MVP, Flip, Matt, Azstec and Smaines:
I think this problem is very easily solved.
Open the telephone and allow law enforcement to have every single bit of data which is inside it.
Benjamin Franklin would have recommended the same.
Have a Dovely.
Sincerely yours,
Caleb Boone.
Re: Re: Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Gandydancer:
I have re-read your comment.
I note that you did not state disagreement with me, as such.
Therefore, I retract the sentence which I typed: "I disagree with you."
I don't disagree with you.
Instead, I offer the comment which I typed a few moments ago to further articulate what I typed yesterday.
Have a Dovely.
Sincerely yours,
Caleb Boone.
Re: Re: Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Gandydancer:
Please see the 5:15 a.m. CT (US) reply which I typed this morning for Nasch below.
I disagree with you.
I admit that I have not read all the Orders issued in this case, but I don't need to. I don't need to know the precise procedural path which this case has taken.
All I need to know is the Constitution.
The United States Constitution, Fourth Amendment, and the hundreds of thousands of cases construing it, supports the Order to Apple to disclose or provide the information necessary to open the IPhone, just as if it were a metal key to a door to the Defendant's apartment and the murder weapon were inside the apartment.
Have a Dovely.
Sincerely yours,
Caleb Boone.
Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Nasch:
I will read the articles and this discussion in full, if I have enough time after hours.
I will provide one short comment for the moment.
I understand that Apple objects in part because it believes that what the court order requires it to do is create, out of whole cloth, what it contends does not exist: a new program, password or unlocking device which does not exist.
Apple believes that, at most, it should not be required to do anything more than produce what already exists: not do the work of the court system for the courts, or do law enforcement's work for law enforcement.
(Again, I realize that Apple has many more reasons for its objections than this, but I am just concentrating on this one reason for the moment.)
I believe Apple is clearly wrong. Its objection ignores logic.
Apple created the IPhone. Only Apple can properly open an IPhone and only Apple can engineer a device which completely and perfectly will remove all the data from an IPhone, including all the little scraps, odds and ends, which blunt-force law enforcement techniques would either destroy, lose or never recognize.
Therefore, it is like providing the key to a barn.
The barn is locked and the officer wants to get inside the barn.
He needs a key to do that.
The farmer is the only one who has the key.
The farmer needs to give him the key.
If the farmer has lost the key, the farmer must provide entry to the barn by giving the officer another key, or pointing out a rope which will pull up a sliding wooden door which the officer did not notice, so the officer can go inside through the other, sliding door, without having to use a key (now lost) to the main door.
The farmer did not commit a crime but the farmer has evidence of the crime committed by his farmhand, inside the barn: a gun, or a knife.
The farmer is ordered by the court to open the barn for the officer by whatever means are available.
The farmer may not have to re-program the old wooden barn, but if it were a modern, year-3000 Star-Trek barn and could only be entered using an elaborate computer program, then the farmer would have to rewrite the program, or re-wire the barn, or re-configure a new password, or invent a device which would open the barn, manufacture the device, and give it to the officer, if necessary.
That is what it means to fully comply with a lawful court order.
The farmer built the barn, and the farmer hired the farmhand.
The farmer may have made an error in judgment in hiring the murderous farmhand.
But the farmer must abide the consequences of his poor judgment.
Apple may have exercised poor judgment in selling an IPhone to the terrorist couple.
Apple must now abide the consequences of its decision to sell that IPhone to that terrorist couple.
Of course, it is not a question of poor judgment, but, on the other hand, there is nothing illegal in Apple requiring a criminal, personal or other background check before a prospective customer can purchase an IPhone.
No one has the Constitutional right to buy an IPhone.
Many countries in which people can buy IPhones do not have a Constitution or Bill of Rights anyway.
But of course the Bill of Rights and the Constitution do not apply to this aspect (choice-of-customer) of this private commercial transaction if the restriction on purchasing is legitimate, logical and not otherwise a violation of American (or other countries') anti-discrimination laws, which it would not be.
An interesting thought.
Have a Dovely.
Sincerely yours,
Caleb Boone.
Apple Must Open The San Bernardino Terrorist's IPhone.
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.
Re: Re: Apple Must Open The San Bernardino Terrorist's IPhone.
Dear Miss Higgins:
I disagree.
The legal issue is very simple.
The courts have ordered Apple to open one 'phone.
The issue is whether Apple is legally justified in its refusal.
There is no legal or scientific justification for Apple's refusal.
Apple's IPhone contains evidence of multiple murders committed by a terrorist.
Apple must open the 'phone and disgorge the evidence.
There is nothing technologically esoteric about this at all.
It is no different from opening a milk can to find a pistol a murderer hid inside the milk can.
So put away your slide rule and your copy of Herrman Hesse's "Siddhartha."
They cannot help you now.
Have a Dovely.
Sincerely yours,
Caleb.
Apple Must Open The San Bernardino Terrorist's IPhone.
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.