The Unz Review: An Alternative Media Selection
A Collection of Interesting, Important, and Controversial Perspectives Largely Excluded from the American Mainstream Media
 BlogviewAndrew Napolitano Archive
Apple's Involuntary Servitude
🔊 Listen RSS
Email This Page to Someone

 Remember My Information



=>

Bookmark Toggle AllToCAdd to LibraryRemove from Library • BShow CommentNext New CommentNext New ReplyRead More
ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
AgreeDisagreeThanksLOLTroll
These buttons register your public Agreement, Disagreement, Thanks, LOL, or Troll with the selected comment. They are ONLY available to recent, frequent commenters who have saved their Name+Email using the 'Remember My Information' checkbox, and may also ONLY be used three times during any eight hour period.
Ignore Commenter Follow Commenter
Search Text Case Sensitive  Exact Words  Include Comments
List of Bookmarks

“There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” — Justice Antonin Scalia (1936-2016)

After the San Bernardino massacre on Dec. 2, 2015, the FBI lawfully acquired the cellphone of one of the killers and persuaded a federal judge to authorize its agents to access the contents of the phone. Some of what it found revealed that the killer used the phone to communicate with victims and perhaps confederates and even innocents who unwittingly provided material assistance.

Then the FBI hit a wall. It appears that the killer took advantage of the phone’s encryption features to protect some of his data from prying eyes unarmed with his password.

The cellphone was an iPhone, designed and manufactured by Apple, the wealthiest publicly traded corporation on the planet. Apple built the iPhone so that its users can store sensitive, private, personal data on the phone without fear of being hacked by friend or foe.

After the FBI determined it could not replicate the killer’s password without jeopardizing the phone’s content, it approached Apple, and representatives of each negotiated for weeks trying to find a way for Apple to help the FBI without compromising the security of the Internet itself. They failed.

Apple has argued that the government has no legal right to compel it to assist in a government investigation, or to compel it to alter or destroy its business model of guaranteeing the safety and privacy of its customers’ data. Apple knows that any “key” it creates for the FBI, once used on the Internet, is itself vulnerable to hacking, thereby jeopardizing all Apple products and negating the privacy of tens of millions, and even exposing the government to foreign hackers.

The Department of Justice has argued that Apple has a legal duty to help solve the mystery of who knew about the San Bernardino attacks so that the guilty can be prosecuted and the rest of us protected from future harm. Its lawyers asserted that the government would keep secure whatever key Apple created.

After the DoJ/Apple talks broke down, the DoJ made a secret application on Feb. 16, 2016, two and a half months after the massacre, to a federal judge for a search warrant for this key to access the killer’s iPhone.

The warrant was improperly granted because Apple was not given notice of the DoJ application. So, the judge who issued the order denied Apple due process — its day in court. That alone is sufficient to invalidate the order. Were Apple a defendant in a criminal case or were Apple to possess hard evidence that could exonerate or help to convict, the secret application would have been justified.

But that is not the case here.

ORDER IT NOW

Instead, the DoJ has obtained the most unique search warrant I have ever seen in 40 years of examining them. Here, the DoJ has persuaded a judge to issue a search warrant for A THING THAT DOES NOT EXIST, by forcing Apple to create a key that the FBI is incapable of creating.

There is no authority for the government to compel a nonparty to its case to do its work, against the nonparty’s will, and against profound constitutional values. Essentially, the DoJ wants Apple to hack into its own computer product, thereby telling anyone who can access the key how to do the same.

If the courts conscripted Apple to work for the government and thereby destroy or diminish its own product, the decision would constitute a form of slavery, which is prohibited by our values and by the Thirteenth Amendment.

Yet, somewhere, the government has the data it seeks but will not admit to it, lest a myth it has foisted upon us all be burst. Since at least 2009, the government’s domestic spies have captured the metadata — the time, place, telephone numbers and duration of all telephone calls — as well as the content of telephone calls made in America under a perverse interpretation of the FISA statute and the Patriot Act, which a federal appeals court has since invalidated.

The DoJ knows where this data on this killer’s cellphone can be found, but if it subpoenas the NSA, and the NSA complies with that subpoena, and all this becomes public, that will put the lie to the government’s incredible denials that it spies upon all of us all the time. Surely it was spying on the San Bernardino killers.

There is more at stake here than the privacy of Apple’s millions of customers and the security of power grids and all that the Internet serves. Personal liberty in a free society is at stake. A government that stays within the confines of the Constitution is at stake.

The late great Justice Antonin Scalia recognized that liberty and safety are not in equipoise when he wrote that there is nothing novel about liberty trumping safety under the Constitution. The primacy of liberty and a government subject to the rule of law is the core constitutional principle that, while honored, will keep tyranny at bay. And when dishonored, will let tyranny thrive.

Copyright 2016 Andrew P. Napolitano. Distributed by Creators.com.

 
Hide 10 CommentsLeave a Comment
Commenters to Ignore...to FollowEndorsed Only
Trim Comments?
    []
  1. “Unique”. That’s one way of putting it.

  2. woodNfish says:

    “The primacy of liberty and a government subject to the rule of law is the core constitutional principle that, while honored, will keep tyranny at bay.”

    Too late! Amerika is already a fascist surveillance police state run by a corporate oligarchy. I’m not sure even Trump can change it, but I am voting for him in the hope that he will.

  3. ignoramus says:

    Why don’t they just water-board that phone? Trump says it works. Cheney knows it does.

  4. Svigor says:

    Apple’s Involuntary Servitude

    Good call. This is exactly what I thought when I first saw the story. Involuntary servitude (“make us an app that will do what we want, not what you want”) is reserved as punishment after finding of guilt via due process, last time I checked. It’s not like ordering a company to check or hand over records, which is a natural and distinct process (companies are supposed to be keeping certain records anyway, and handing them about is normal in the course of doing business).

    Apple should fight this, seems blatantly un-Constitutional.

    The gov’t is also demanding that Apple intentionally degrade their own products, give a (big) advantage to their competitors, and screw their own shareholders.

    • Replies: @boogerbently
  5. Svigor says:

    “There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” — Justice Antonin Scalia (1936-2016)

    It was the whole bloody point of rights like freedom from unreasonable search and seizure. It’s another way of saying, “no, you can’t just justify any kind of tyranny you want with legitimate goals; if you can’t catch criminals the right way, we’d rather you didn’t catch them.”

    If Apple loses this fight, they should go open source to the extent necessary to provide a platform for third parties to deliver the services the gov’t will have illegitimately denied Apple from providing.

    The Department of Justice has argued that Apple has a legal duty to help solve the mystery of who knew about the San Bernardino attacks so that the guilty can be prosecuted and the rest of us protected from future harm. Its lawyers asserted that the government would keep secure whatever key Apple created.

    If the gov’t doesn’t like terrorists on American soil, it should do it’s duty and keep immigrants from terror-exporting countries from coming here.

  6. Svigor says:

    Yet, somewhere, the government has the data it seeks but will not admit to it, lest a myth it has foisted upon us all be burst. Since at least 2009, the government’s domestic spies have captured the metadata — the time, place, telephone numbers and duration of all telephone calls — as well as the content of telephone calls made in America under a perverse interpretation of the FISA statute and the Patriot Act, which a federal appeals court has since invalidated.

    That’s an interesting theory, but it’s possible, if not likely, that the phone contains data that wasn’t transmitted over the network.

  7. @Svigor

    Having them (AAPL) crack that one phone is one thing.
    Giving them (FBI) the tech to crack ALL i-phones is another.

  8. @boogerbently

    “Having them (AAPL) crack that one phone is one thing.”

    No, I would actually submit it is the entire thing itself. Issuing a government order to do that would set the concrete precedent for it to happen again in the future, to anyone the government desires access to, for anything that is dissident in its view.

  9. According to the Intercept

    The legal Authority goes back a way- 1789 in fact

    “Critics have also taken aim at the legal avenue through which the government is trying to compel Apple’s cooperation. To get its way, the government is leveraging the All Writs Act, a federal statute that allows it to require Apple to take extra steps to help fulfill an earlier lawful request, in this case the warrant to search the iPhone. The government turned to the act after the FBI spent two months trying to figure out a way into the phone and was unable to find one. The act’s lineage traces back to the Judiciary Act of 1789, though it has been updated numerous times since it was introduced.

    “The court is ordering Apple to create a backdoor into an iPhone’s operating system, citing a law adopted in 1789,” said Greg Nojeim, director of the Freedom, Security and Technology Project at the Center for Democracy & Technology in a statement. “If the order stands, the defective operating system (iOS) could be installed over any existing version of iOS, enabling law enforcement officials to guess the password on a cellphone. If the order stands, Apple and other technology companies could be ordered to build backdoors — essentially defects — into other devices, rendering them insecure and vulnerable to attack by law enforcement and by others as well. We will fight against this result.””

    https://theintercept.com/2016/02/17/apple-slams-order-to-hack-a-killers-iphone-inflaming-encryption-debate/

  10. Pontius says:

    What kind of world do we live in when governments think they have the right to spy on every last waking moment of our lives?

    That’s Facebook’s job.

Current Commenter
says:

Leave a Reply - Comments on articles more than two weeks old will be judged much more strictly on quality and tone


 Remember My InformationWhy?
 Email Replies to my Comment
Submitted comments have been licensed to The Unz Review and may be republished elsewhere at the sole discretion of the latter
Subscribe to This Comment Thread via RSS Subscribe to All Andrew Napolitano Comments via RSS