Apple vs FBI Court no power to order Apple to create a Fix! (Article updated. New US Case)

+Apple vs +FBI  The FBI federal bureau of investigation 

**** Updated - Recent US Court decision agrees with my legal opinion almost word for word!!!

I refer to the FIN24.com article which gives the background to the legal battle between Apple and the FBI. I quote the article below for convenience http://www.fin24.com/Tech/News/apple-fights-dangerous-order-to-hack-iphone-20160218 

En Passant - iPHONES MUST BE VERY SECURE

The first point to make is that by opposing the Court Order, Apple are drawing attention to just how secure their iPhones apparently are.

Consider the vast resources available to the FBI and the wide array of top computer experts the FBI would be able to call upon. Clearly it did call upon its experts, which surely also included several former hackers who instead of being imprisoned for other offences, were instead offered a chance to repent by working for the FBI for a few years.

That the FBI were forced to approach the Court is a tribute to the security provisions Apple introduced to protect the information their clients store on their iPhones.

Legal Opinion - THE COURT ORDER SEEMS UNDULY WIDE IN THAT IT SEEKS TO COMPEL APPLE TO ACTUALLY CREATE A SOLUTION!

The debate about whether the rights of privacy of individual iPhone users should give way to the search and seizure rights of law enforcement agency in terrorism and other criminal cases misses what I consider to be the main point. The Court, in my view, does not have the power to make the order it did in the first place.

Consider the following statement from Apple.

"The US government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone," Apple said.
"In the wrong hands, this software - which does not exist today - would have the potential to unlock any iPhone in someone's physical possession."

It would be one thing if the FBI could have shown that Apple already have a fix or backdoor which might allow the user of such fix to unlock any iPhone. I suspect that such a scenario represents the high watermark of the intended limits of the Order granted.

But since such fix or backdoor apparently does not exist, I suspect that no Court has the power to actually order Apple or any other manufacturer to in fact create such a fix. 

The order as it stands falls short of an actual order to create a fix, but to the extent that it might be so interpreted, I am certain that Apple will win the case on that very point.

Since the FBI do not have a contract with Apple to create the fix, the obligation to create a fix cannot arise from Contract.

Since creating a secure phone is not a delict / Tort, there can be no obligation to create a fix in delict or tort law.

A US Court might have wide powers under US security legislation or the Constitution to order third parties to comply with legal search & seizure Orders, which would include  Apple having to hand over a fix or  backdoor "key" if there was one in existence.  However one looks at it, such an order is one which compels a third party to permit, grant or assist the FBI to gain access. In these types of orders, the word "assist" must be narrowly construed. It is the FBI who have the duty to search and it is they who have the power to seize. The third party's role to assist is limited to acts like unlocking premises in the third party's care, handing over documents in the third party's care, or providing the FBI with the means to access those documents in the third party's care etc. etc.

An order to create such a solution, however, is another matter entirely. It would be akin to sanctioning a form of slave labour, which would be rendered involuntarily and on an unpaid basis. Such an order cannot be enforceable. Even if the Order provided for Apple to be compensated for their efforts, the fact that Apple would have no choice in the matter would be unconstitutional in my view.

The line between an order compelling a party to permit access or to create the means to enable access might seem arbitrary, but it is not.  The FBI has the job of fighting crime and terrorism in the US. A scenario where a Court has the power to in fact impose a positive duty on citizens to do the FBI's Job for it is too ghastly to contemplate.

Let me explain by means of another law enforcement situation which seems to occur in US movies from time to time. Assume that a police office has the power, in an emergency, to ask a citizen to step out of his car and to permit the officer to "commandeer" it. If such right to commandeer indeed exists in the US, this would be one thing. However, a police officer cannot simply hop into the passenger seat of the car, flash his badge to the driver, announce that he is commandeering it and then order the driver to "Follow that car!" The drive would be entitled to refuse! Why? It's not the citizen's job, and in a free country, one cannot arbitrarily be ordered to do someone else's job!

 Fred Kaplan in @Slate http://slate.me/1Ud1H9T  argues this, though:

As Shane Harris reported in the Daily Beast, Apple has unlocked phones, at the government’s request or under court order, at least 70 times since 2008. In doing so, Apple implicitly accepted the principle that the government has the right, under court-approved circumstances, to get inside Apple-made phones. Cook designed the iOS8 operating system in 2014 precisely to evade further requests: Under the new system, the user sets the code, so if the government asks Apple executives to unlock a phone, they can honestly say they can’t. Now the FBI has devised a way around the problem by asking Apple to shut off the data-wipe feature, so the phone can be unlocked with brute force. The technique is different, but the outcome—letting the government into a phone designed by Apple—is the same. Cook may have changed his mind about the government’s right to his products’—his customers’—contents; he may regret ever cooperating in the first place. But that doesn’t negate the fact that Apple accepted the principle in the past, and the company’s identity and ownership haven’t changed in the interim.

 I disagree.

In the first instance, relief sought by the FBI and granted by the Court is different from past instances. Apple are being asked to go further than they have in the past... to DO or CREATE a solution as opposed to simply PERMITTING  or Assisting the FBI to gain access to the iPhone using existing methods.

Secondly, If I'm wrong, however, to the extent that Apple's conduct could be argued to be DOING or CREATING something, there are two answers.
Either the Court orders amounted to Judicial overreach,  i.e. the Orders went further than Constitutionally permitted OR Apple voluntarily chose to provide assistance in excess of that specified in past orders.

Neither of the above prevents Apple from challenging the illegality of the present order.  If the present order goes further than the law permits, and it is challenged, then the argument that Apple may have complied with previous such orders won't assist the FBI.

Also the fact that Apple may have chosen to provide assistance to the FBI which may have exceeded the strict terms of past Court Orders cannot amount to a valid lawful waiver by Apple of its constitutional right to now challenge an existing Order it deems to be unlawful. The question of whether or the Government has the right to get inside iPhones is cannot be determined by having regard to Apple's past compliance with such orders.

The importance of the above challenge is that the Government bears the onus of proving that it is entitled to an order as far reaching as the one it obtained. Only once it can establish that, which in my view it cannot, could the defence Apple raises, set out below, be contemplated.

Quite apart from the above, is the argument Apple have already raised about the rights of their existing customers to the security the iPhone presently offers. Here the onus would presumably be on Apple. Also, since there are pros and cons on both sides, the argument is more difficult.

Siegfried Walther  18 Feb 2016

UPDate: See recent US Court decision. 29/2/2016 (Further Below) Virtually everything I said, word for word and I'm not even a US Lawyer.

 

 

 

FIN24.COM ARTICLE http://www.fin24.com/Tech/News/apple-fights-dangerous-order-to-hack-iphone-20160218

Apple CEO Tim Cook speaks at the Apple Worldwide Developers Conference in San Francisco. (Jeff Chiu, AP)

       

San Francisco - Apple has rejected a judge's order to help the FBI break into an iPhone used by one of the San Bernardino shooters, warning it was "too dangerous" to create such a backdoor to the smartphones.
US magistrate Judge Sheri Pym ordered Apple on Tuesday to provide "reasonable technical assistance" to the FBI, including disabling an auto-erase feature after too many unsuccessful attempts are made to unlock the iPhone 5C.
Federal prosecutors had filed a motion requesting Apple's help after the FBI failed to crack the phone's code two months into the investigation into the December rampage.
Syed Farook, a US citizen, and his Pakistani wife Tashfeen Malik gunned down 14 people at an office party in San Bernardino, California, before they were killed in a shootout with police.
But Apple said it would fight the judge's order, firing the latest shot in a growing debate over encryption pitting the government against tech companies.
"The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers," Apple chief executive Tim Cook said in a statement on the company's website.
"We oppose this order, which has implications far beyond the legal case at hand."
Cook said it was too risky to provide the requested software because it could allow ill-intentioned individuals to unlock any iPhone and raises major privacy concerns.
"The US government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone," Apple said.
"In the wrong hands, this software - which does not exist today - would have the potential to unlock any iPhone in someone's physical possession.
"While the government may argue that its use would be limited to this case, there is no way to guarantee such control," he said, adding that Apple has cooperated with the FBI thus far.
By disabling the security features, the FBI would be able to attempt as many different password combinations as needed before gaining access to the phone.
It was the property of the San Bernardino County Department of Public Health, which employed Farook, and the authority had agreed to the search of the phone.
'Chilling'
Pym ordered Apple to provide software that would only run on the device in question, or any other technological means to access its data.
But Apple said it was impossible to create such a tool that could only be used once, on one phone.
"Once created, the technique could be used over and over again, on any number of devices," Apple said.
"In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks - from restaurants and banks to stores and homes. No reasonable person would find that acceptable."
The US government is concerned that commercially-available encryption benefits criminals.
Tech companies, intent on securing the trust of consumers after government spying revelations made by Edward Snowden, have been reluctant to be seen as helping authorities spy on users.
"We can find no precedent for an American company being forced to expose its customers to a greater risk of attack," Apple said.
"The implications of the government's demands are chilling."
"If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone's device to capture their data."
Cook warned that if Apple complied with the order, the government could demand surveillance software to intercept, access health and financial data, track users' location or access a phone's microphone or camera without the user's knowledge.
"We are challenging the FBI's demands with the deepest respect for American democracy and a love of our country," Cook added.
US Attorney Eileen Decker had earlier called the order "another step - a potentially important step - in the process of learning everything we possibly can about the attack in San Bernardino."
FBI Director James Comey revealed last week that investigators had not been able to crack open the phone two months into the investigation.
"It affects our counterterrorism work," he said.

See Greenwald & McLaughlin article https://theintercept.com/2016/02/29/apple-wins-major-court-victory-in-its-battle-against-fbi-in-a-case-similar-to-san-bernardino/

Apple scored a major legal victory in its ongoing battle against the FBI on Monday when a federal magistrate judge in New York rejected the U.S. government’s request as part of a drug case to force the company to help it extract data from a locked iPhone. The ruling from U.S. Magistrate Judge James Orenstein was issued as part of the criminal case against Jun Feng, who pleaded guilty in October to drug charges. It is a significant boost to Apple’s well-publicized campaign to resist the FBI’s similar efforts in the case of the San Bernardino killers.
In the case that gave rise to Monday’s ruling, the Drug Enforcement Administration had seized — but, even after consultation with the FBI, claimed it was unable to access — Feng’s iPhone 5. The DEA and FBI said they could not overcome security measures embedded in Apple’s operating system. The government thus filed a motion seeking an order requiring “Apple to assist” the investigation “under the authority of the All Writs Act” — the same 1789 law the FBI is invoking in the San Bernardino case — by “help[ing] the government bypass the passcode security.” Apple objected, noting that there were nine other cases currently pending in which the government was seeking a similar order.
Judge Orenstein applied previous legal decisions interpreting the AWA and concluded that the law does not “justif[y] imposing on Apple the obligation to assist the government’s investigation against its will.” In a formulation extremely favorable to Apple, the judge wrote that the key question raised by the government’s request is whether the AWA allows a court “to compel Apple — a private party with no alleged involvement in Feng’s criminal activity — to perform work for the government against its will.”
The court ruled that the law permits no such result — both because relevant law contains limits on what companies like Apple are required to do, and because Congress never enacted any such obligations. Moreover, the judge said of the government’s arguments for how the AWA should be applied: “The implications of the government’s position are so far-reaching — both in terms of what it would allow today and what it implies about congressional intent in 1789 — as to produce impermissibly absurd results.”

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