Federal Judge Orders Apple to Assist FBI Investigation of San Bernardino Shootings

The FBI successfully sought a court order telling Apple, as a corporation, they must assist the FBI in the investigation of the shootings in which an iPhone was retrieved from one of the deceased shooters.  Apple is, at present, refusing to comply with the order.  This is not a warrant.  This is a court order directing a private corporation that:

“Apple’s reasonable technical assistance shall accomplish the following three important functions: (1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.”  The shorthand version of what the government wants here is the ability to bypass or overcome the time out function or destruction of of phone data that occurs when one puts the wrong passcode repeatedly into an iPhone.  Judge Sheri Pym did not provide Apple with some aspirational goal like “try your best” to help out the FBI investigation.  Apple is being ordered what they “shall accomplish”, what they “will bypass or disable”, “what they “will enable” and what they “will ensure.”


Judge Gave Apple Time to Respond

Apple CEO Tim Cook wrote a letter labelled as A message to our customers.” He indicated that Apple was not going to instantly comply with the court order.  Apple has retained the services of renowned lawyer Theodore Olson who successfully represented then republican candidate George Bush in the Bush v. Gore case, ultimately winning Bush the presedential election. It is not known at the present time what penalties Apple will face as a corporation or who, if anyone, at Apple would be subject to being jailed for not complying with the order.  One should note that prior to her seat on the Federal Bench, Judge Pym was an assistant U.S. attorney and also a chief of the Riverside branch of the U.S. attorney’s office, Central District of California.  This case was brought in federal court in the Central District of California.  It appears to be a motion filed by her former office asking her bring this order against Apple. Thus far, the federal prosecutors appear to have success in having their motion granted and an order entered by a sitting judge who just happens to be a former federal prosecutor from the same office.

This Court Order Is Not A Subpoena Or a Warrant

This court order is issued under the “All Writs Act of 1789” which states that federal courts can issue such orders.  The Act states the government, through a federal judge, can issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”  Here the court is telling Apple they will make certain software changes to allow entry into this one phone.  Apple’s well founded fear is that this software, once available, creates potential security problems for millions of customers’ personal data.  The government counters that that won’t happen.  Also, as a strategy, Apple could at this time just be putting up a good legal fight, with the best legal counsel available, to demonstrate to customers and the marketplace that, if Apple is forced to comply and the codes get out and customers are compromised, well, the government is the bad guy.  Also, as Apple is a publicly held company with a reported cash position of 205 billion dollars and reportedly 66,000 employees in the U.S.,(that’s over 3 million cash per employee) there may be some attempt at brand and market share protection dressed up as privacy concerns.  Conversely, the federal government who has assumed the sky is falling unless they get in this one phone is currently 19 Trillion in debt, or reportedly $58,413 indebtedness per person in the U.S.  This writer’s point is that if the government can exert pressure and order Apple around in this manner, the average citizen should go ahead and assume they have no privacy.  Also, this case shows how powerful the government is.  The shooter who had the phone is dead and obviously can’t be prosecuted.  The Government is saying opening the phone may lead to other prosecutions and the dead and wounded victims deserve that justice.


Facing A Warrant

There are arrest warrants, search warrants , subpoenas, subpoenas duces tecum(usually paperwork and records), court orders, and overall general rules of court that residents of the U.S. better adhere to if directed by the government. This writer was in a county courtroom this morning where the sign on the door, forbid, among other things, the wearing of shirts with cannabis leaves depicted on the shirt.  Cannabis leaves depicted on a court attendee’s tie, pants or suit jacket was not addressed on the sign. Apparently it’s just the shirts with pot leaves posing problems.  As ridiculous as this sounds, seeing as how many states are relaxing their weed laws, the writer’s point is that the government is all powerful. Wearing such a shirt in that courtroom is going to attract for the wearer  the personal attention of uniformed, armed bailiffs.   If you learn that you have an arrest warrant, take steps to get yourself turned in.  If law enforcement shows up with a search warrant do not resist.  If an officer has you detained on the side of the road in a traffic stop, do not make any quick movements and try your best to be courteous while the officer conducts his or her investigation. Of course, one’s constitutional rights always need to be protected.  If you, a friend or family member knows of a pending warrant or any sort, even a pending investigation, someone needs to contact a competent criminal defense attorney. The Forbess Law Firm has assisted and provided criminal defense counsel to those with warrants and pending investigations in Duval, Nassau, St. Johns, Bradford, Baker and Clay counties for years.








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