Apple is going to take their case to a higher source and they may need to appeal to an even higher intervention as the court has joined the FBI (Federal Bureau of Investigation) ordering Apple to provide what they refer to as a ‘key’ which the FBI could use to defeat the security encryption system which allows users to encrypt their data keeping it private only available to somebody who knows the security code. The encryption has the added feature that it makes the time before another code can be entered longer and longer as incorrect codes are entered and erases all the information after a number of wrong guesses have been entered. Let me admit right up front that I have avoided Apple products in favor of LG whose phone and pad I use while our proof-reader does love her antique i-phone which does not have the encryption option as the hardware only was installed starting with the newer units, we won’t say which as we ought not anger the proof-reader. Still, we both agree with Apple that they should not be forced to give the FBI a generalized code or any method which could be utilized on any other i-phone but there will be almost as many arguments as there are people and that is something right down our alley, taking a side and then defending it.
The first thing we need to take a look at is who the judge is in this case. Sheri Pym was originally a United States District Court for the Central District of California who was then appointed to sit as a United States Magistrate Judge on April 15, 2011. The duties of Magistrate Judges include conducting preliminary proceedings in criminal cases, the trial and disposition of misdemeanor cases, conducting discovery and various other pretrial hearings in civil cases, the trial and disposition of civil cases upon consent of the litigants, and other matters as may be assigned. Magistrate Judges are appointed for a term of eight years, and can be reappointed to additional terms. This is a Judgeship as part of the United States District Judge which appears to have been a position where the court system itself recommends who they believe is capable and meets a set of criteria to become this particular level of District Court Judge. Judge Pym prior to her appointment served as an Assistant United States Attorney and Chief of the Riverside branch office of the United States Attorney’s Office, doing mostly criminal prosecution work. Prior to joining the U.S. Attorney’s Office, she was an associate at Milberg Weiss LLP in San Diego, where she represented plaintiffs in class actions involving consumer fraud, wage and hour violations, securities fraud, and tobacco litigation, and also worked in the firm’s appellate department. From what we have been able to ascertain this position is one where the appointment is more of a promotion than it is an appointment the President would necessarily take the time to review anything more than the recommendation of the office promotion recommendations and sign off and the United States Senate would receive this as likely a group of such appointments and routinely sign off, yes that requires their voting on the appointment, more than they would labor and debate possibly calling Judge Pym to appear in Washington D. C. for hearings as they would an appointment to the Federal Court of appeals. If anybody has additional information preferably with links and sustaining documentations we would very much appreciate such information made in the comments below and we thank our readership for any such assistance they can provide.
Now to the case itself and what we could discern as the reasoning. Where it is understandable that the FBI would really love to have access to every last bit of information they can get their hands on in any and every case, especially those where they have a target and need to find a case to present; it is also understandable that they really would like to get into the cell phone with the minimal hassle and time invested of anyone suspected of being attached to a criminal enterprise which in this instance includes terrorist activity. The FBI also has previously run into instances where i-phones have been encrypted and they likely lost vital information and time attempting to get past the Apple encryption system and also after making several attempts to get past the encryption lock had the phone wire and destroy any information the i-phone may have had within including the all-important phone logs including phone numbers which might break other cases or cement their current investigation. In this instance the iPhone 5c was a work phone used by Syed Farook, who along with his wife, Tashfeen Malik, murdered fourteen people in San Bernardino, California last December. This is a solid reason for desiring to get past the encryption without erasing the very data the FBI seeks in this case, which considering the terrorists were killed, means seeking deeper contacts and potential ties with terror cells or other links which the FBI may already be investigating. There is not known information contained in the i-phone so this is not the ticking time-bomb situation though our bet is this was part of the FBI argument that they might in the future have just such a situation and going through having Apple gain entry into the i-phone might take longer than they would have.
This leads to a simple question, what was the critical piece of law, writ, judgement, precedent or other critical information on which this case is relying for its reasoning and/or precedent. According to the information we found, the particular was the All Writs Act, a law stretching back over two centuries. All Writs Act of 1789 (United States Code › Title 28 › Part V › Chapter 111 › § 1651) reads:
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
When reading the notes and supplemental information we believe we found the specific application utilized by Judge Sheri Pym to back her decision and granting her the power to require Apple to comply. It reads as follows:
“The Supreme Court and the district courts shall have power to issue writs of scire facias. The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.”
This reads, if we are not mistaken, such that a judge can pretty much make up their own precedent by simply not being capable of finding any ruling or law pertaining to the case before them. Something tells us that this reasoning is not going to stand upon further review and that this case will be appealed by either side until the Supreme Court has decided or refused allowing the decision of the lower court to stand, in this case the Ninth Circuit Court of Appeals (oft referred to as the Ninth Circus due to loopy decisions overturned subsequently by the Supreme Court, particularly in recent history). The fact that this law stretches back almost to if not actually to antiquity when it comes to United States law and is likely enacted to give cover to judges to use sparingly, and since it was referred to regularly as the “judge invoked a little-know law,” we feel comfortable thinking that this one is on the chopping-block when it reaches the Supreme Court in Washington D. C. which is where numerous old laws either came to die or received a supercharging and left Washington D. C. with a whole new set of super powers. We can only hope this little known law receives the death penalty and is quickly executed. Allowing a judge, any judge, to make things up on the fly is far too dangerous a power. Just because there is no law applicable to a situation should never be the reason empowering a judge to invent powers to a law, or are these super powers, just to make their decision they would like to make applicable in a case. Do not get me wrong, Apple is one company among a list of companies which I would support almost any reasonable, key word here, reasonable, judgment with which to knock them down a peg, but even I cannot fathom allowing this power to be resurrected and allowed to stand in a society as litigious as the United States or we will have United States District Judges all over the nation adding turbochargers and then superchargers to what they see as underpowered laws which need heavier application which they just want so bad they can taste it. We can taste that too; and it is called tyranny, a tyranny, warned about by the Greek philosopher Alontesquieu who cautioned, “There is no tyranny, than that which is perpetrated under the shield of law and in the name of justice.” This should be written on a nicely framed gavel holder which includes and amply sized gavel even for the most insecure or overbearing judge may require or feel the need with this inscription placed under a strong and shatter-proof glass on every judge’s dais so they may read it every time they raise that gavel.
What this case will eventually fall under is the letter of the law and not how far out of shape such law can be twisted, folded, bent, widened or supercharged and it will likely be found as falling in antithesis to Amendment IV of the Bill of Rights. Amendment IV reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
So, where do cellphone data fall on this lovely right deemed so important to the safety and protection from government run wild with a hunger for absolute power came for protection? That requires deciphering what information a cellphone may contain and where such items might belong by seeking their earlier non-digital age counterpart. Our cellphones keep our phone numbers, e-mail addresses, potentially actual addresses and other pertinent and deemed quickly recoverable information on each entry we place in the cellphone. The complexity and depth of information may vary, but generally this replaces our personal phonebooks which most definitely are protected as being both papers and effects thus requiring a warrant for any law enforcement officer, even an FBI agent, to acquire before accessing such information. The argument that both Tashfeen Malik and Syed Farook are currently deceased (never underestimate the ever increasing power of medical science) and thus do not have the right to such protection and as they obviously had perpetrated a heinous crime of murdering fourteen innocent victims, there should be no great hurry requiring any urgent access. This is even more obvious as the FBI has had possession of their cellphones likely for close to two months, so instant access is not required here. The FBI could take the cellphone(s) in question down the road to Apple and have them access all the data in the cellphone(s) and leave them fully open and with the encryption access decommissioned permitting easy access to all the information within the cellphone(s) available to the investigators as they proceed with their case investigations. The ‘key’ the FBI is requesting could be utilized on any i-phone which is encrypted to gain access nearly instantly and thus be able to take anyone’s i-phone 5 or better running iOS 8 or later version software and gain full and complete access to the information on such a device, i-phone or i-pad. Giving the FBI such a tool would subsequently be demanded by every Federal Agency in order to supplement their investigative arms in accessing i-phones or i-pads including the personal devices of their employees. Once again they would not need to have any pressing need for the information requiring such easy access but they would still desire having such power.
Imagine how quickly they could run down that entry on-line which a supervisor found insulting or out of line and desired to know from whose i-phone such a post was sent. The reasoning excuses would be endless. Then State Police, city police, county police, homeowners associations, who knows where such would stop, the leader of a quilting society, who knows. This judgment will have far reaching implementations galore if it is allowed to stand. Apple should even be granted protection from having to divulge this key until the final appeal date has been passed or the Supreme Court has ruled or lower court decision allowed to stand simply to protect this proprietary information from being compromised. I am sure it would irreparably damage i-phone should this ‘key’ become available to hackers as this would quite possibly give them access to records which may include a person’s passcodes for their every account on-line or at the ATM or wherever they kept user name and password information, vital information. So, we have established the fact that this is a phonebook on steroids, but still a phonebook. What else do we keep stored on our phones, especially i-phones or i-pads? Well, there are the photographs, though they are now called images. Well, our yearbooks, photo albums and the like are definitely papers and effects. We keep our schedule and any alarm settings such as your not so friendly wake-up your phone provides every day, in the case of i-phones every day needed or not, with a wake-up alarm of your choosing, mine is a lullaby. These too are amongst your effects. If your home security system is linked to your i-phone or i-pad that counts as giving them access to your house, another little pesky item so very protected by Amendment IV.
All the items kept on our phones, tablets and any other mobile electronic devices and the access they provide to items requiring a passcode or possible entry to our homes and vehicles (oops, vehicles are not protected and by a decision ruling that because they are mobile and could be used to conceal items pertinent to the case at hand and as they could be used to take evidence beyond jurisdiction of the law enforcement at hand, they can be broken into even without our permission, but they would not require our phone or tablet to pry open the trunk of our vehicle) safety boxes with electronic locks, safes, refrigerator (some of us have wives assisting with our diets, who me?, no, I’m just cuddly plump) and whatever else requires a passcode or electronic key which our phone or tablet provide. All of these items are things which require an individual warrant to gain entry and so should our electronic devices. There are reasons that would actually go into areas under Amendment V which does not allow for law enforcement to force us to incriminate ourselves. This comes in to play as say the police have a warrant to search your home for a stolen watch, a Rolex just to make it grand theft Rolex (maybe there is a game in there somewhere and maybe a movie series with a future Rolex which is also a time machine) and they have a warrant to search for that item and they find your slightly less than legal cable set up stealing your neighbor’s signal. Technically they cannot arrest you and use that evidence as it was not included in the warrant, though you would be wise to ‘repair’ that little hook-up and fast because there may be another warrant or an angry cable enforcement officer (like they have such things) visiting you and your neighbor real soon. The law is not made to trap the average person for minor transgressions, which falls under peer pressure to keep one within acceptable bounds. We could call that the oral code as versus the written code which is the police’s domain. Anything on your i-phone or i-pad is protected under Amendment IV and thus entries usually requires a warrant which requires probable cause and a whole host of other information and are about as difficult to attain as an ice cream sundae. For a warrant you fill out the form and submit it to a judge whose position is to review and approve or deny the law enforcement a warrant while an ice cream sundae requires one to visit an establishment, order one (fill out the required forms) and wait for it with a requirement that you will pay for the ice cream sundae before leaving or there may be a warrant in your not too distant future.
In conclusion, the FBI is requesting a general tool to gain data in a particular investigation where they have another option of having the lock removed on the particular item which they desire to inspect its contents. The item is locked not unsimilar to a safe in ones purse or pocket (pretty neat or at least we thought so). This electronic lock can be bypassed by the company which makes the items in question. The contents of the locked item all come under the qualities and qualifications legally as being persons, papers and effects as defined by Amendment IV giving them Constitutional protection. Where a specific entry is possible and Apple would and has provided such assistance in the past but this has proven for too laborious for the FBI to pick up the phone and make an appointment, often so far in the future as to resemble, ‘How long would it take you to get here or would you prefer our technician to come to your location in case you have any other difficulties, officer sir’ kind of laborious efforts. So, instead of going through almost five easy peasy chocolate smoothie steps, the FBI is asking that the courts demand for Apple to give them the ‘key’ which could then be used on any i-phone or i-pad using iOS 8 or later version software and gain full and complete access to the information on such a device. Sure, and here are the electronic ‘keys’ to the ICBM missile silos, are there any other items we could grant you today officer, Sir? So, the judges in the case, Judge Sheri Pym, researched the books, had her clerks research and find some two-hundred-twenty-seven year old statue and blow a century and a half off the records as it has not been used in a while, finding the All Writs Act on which to base her decision. The All Writs Act says, in synopsis, that if a judge cannot find an actual law but finds instead some Federal Code or Law which has yet to be defined as they wish to twist and otherwise mutilate, spindle, bend and otherwise slice and dice and rearrange the letters to finally produce something which they can use, then go for it, you go judge. Judge Sheri Pym made just such a leap of legalistic gymnastics to order Apple to sacrifice one of their selling points by handing over to the FBI a key which can be used to circumvent the passcode effects of both erasing all information thus protected after a set number of incorrect entries and remove the ever lengthening delay before one can enter their next guess so that the FBI can use a password entry device which inputs passcodes at a blindingly mind-numbing speed thus being capable of, if left at its fastest speed and all other limiting or defeating software or hardware limitations probably defeat any code or password of up to twelve characters in under two minutes. As they are describing their request, all they want is to be able to use this code breaking machine on any i-phone or i-pad using iOS 8 or better as it would be so helpful in this case they are currently working on. Never mind that they could have had Apple open the device for them without any muss or fuss but no, they want the power, the power to defeat everybody’s Apple product on the planet as they are the all and powerful Oz, sorry, only the FBI so we are dealing with the little man behind the curtains already and he wants the power for Oz, where Oz is the great and powerful Federal Government and it had 535 little men and women standing behind the curtains called the Capital Dome on picture taking day. Let us hope that this decision gets flamed at the next level and that hold all the way to the top even if that top is the Supreme Court and may we live to read about that case. Remember, it should end up under Amendment IV with a possible assist from Amendment V and Apple should win. Drat!
Beyond the Cusp