Fundamentals of Freedom: The FBI/Apple Kerfuffle

Fundamentals of Freedom: The FBI/Apple Kerfuffle

Fundamentals of Freedom:  The FBI/Apple Kerfuffle

Editor’s note: This guest post is by “GWB”, a reader and friend of Victory Girls. His post is written by request, because of this comment on the post “Apple vs. the FBI” by VG writer, Deanna Fisher.

Fundamentals of Freedom: The FBI/Apple Kerfuffle by GWB

I was asked to do a guest post based on my comment on the FBI/Apple kerfuffle. I am honored, and will do my best to not knock over any of the knick-knacks or spill punch on the carpet. (Holy cow! What did you ladies put in this punch? *cough* Smoooooooth.)

An awful lot of the writing about this incident centers around two primary (and important) principles: privacy (and trusting the government) and justice (including what might be termed “preventative” measures). This is a vital discussion, part of the mussy to-and-fro of democracy.

Deanna Fisher did an excellent post on the discussion of those two principles. And Kim Quade has previously addressed law enforcement’s anger at being closed out of iPhones by Apple’s privacy software. I won’t rehash any of that.

What struck me is that no one seemed to be complaining about what I consider to be a much more fundamental problem:

Last week, the FBI got a judge to order Apple to create software

Yes, the judge, in response to the FBI’s request, actually ordered Apple to do something that is found nowhere within the law, nowhere within the normal jurisdiction of Apple, and nowhere within common law that I can find.

Photo: foxla.com
Photo: foxla.com

Let me say that if Apple had broken a law, or there was a law saying they had to help the FBI, the judge would have a much stronger point. (And, yes, any law saying you must help law enforcement or government agents would generally be – at least in better days – considered un-Constitutional.) Such laws have been proposed (requiring “back doors” available to law enforcement, though the populist backlash against them has been tremendous to this point.

As to ”jurisdiction”, I am using that term loosely. What I mean is that this device did not belong to Apple, nor was it being administered by Apple. The only two places that Apple still had any control of the device is in sending OS updates and maintaining the “iCloud”. The iCloud can still be accessed, I presume, by San Bernardino or the FBI, because San Bernardino changed the iCloud password at some point after the attacks (which broke their ability to get into the phone, itself).

The OS updates are not normally a targeted update – they get pushed to everyone. And, they are, by definition, required to make the OS run better and more securely, not worse and less secure. Imagine the lawsuits against Apple if they – even for 10 minutes – pushed out an update that removed what is called in the IT realm “information assurance protections”?

“What about the warrant”, you ask? Warrants require a suspect or material witness to hand over items that are actually thought to be in existence and are in the possession of the person upon whom the warrant is served. This back door does not exist, and the phone (as pointed out above) does not belong to Apple, nor is it in their possession. They could serve a warrant on San Bernardino, maybe, since the phone belongs to them. But not Apple.

Common law generally does not recognize a requirement to aid the civil authorities, though there is a requirement to not hinder them in their duties. The key is that “not hinder” provision has to do only with getting out of their way and not actually aiding the criminal. Though many citizens would jump right into a fray where a police officer needs immediate assistance, or help firefighters*, we are under no legal obligation to put ourselves at risk.

So, we return to the judge’s order that Apple must aid the FBI in cracking the security on this particular iPhone. What in the WORLD is wrong with this judge?!? He just ordered a free citizen (one of those pretend citizens called a corporation that we create to allow businesses to commit to contracts and have rights) to do something he didn’t want to do and wasn’t otherwise obligated to do. And that order had absolutely NO basis in the law that I can find.

The DoJ says the tech company is “focused more on a ‘perceived negative impact on its reputation.’” Allen West chides them, “In other words, Apple’s stance in the San Bernardino case may not be quite the principled defense that Cook claims it is.”

So what?

If you want to hold a grudge against Apple (a la The Donald), you are welcome to do so. But companies – and individuals – do things for their reputation ALL. THE. TIME. Can you say “libel lawsuit”? One of the fundamental concepts we conservatives frequently point to is that “free speech” allows someone to defend himself from “bad speech” spoken by someone else. That would be “saving his reputation”.

The real problem here is the government ordering anyone to do anything that they are not contractually or legally obligated to do. (A legal obligation might include buying auto insurance in order to drive on the public roads.) If a court ordered me to so much as build a go-cart – that I had not legally contracted to build – I would tell them to GO TO HELL in a very public fashion. Of course, we’ve already dipped into this Orwellian nightmare with ObamaCare. We have been ordered to purchase health “insurance”, regardless of our need for it, or our use of any public health providers. (Don’t worry, it’s just a tax – though the government swore to us it wasn’t a tax.)

But ordering Apple to produce a product for the use of the government is even a step further. It’s outright, bald-faced, blatant SLAVERY. Yes, slavery.

Didn’t we have a war centered on not allowing anyone to force another to provide their labor or intellectual effort without their consent? Didn’t we pass the 13th Amendment to make that very thing entirely and absolutely un-Constitutional?

Apple is NOT being required to do this because it is otherwise obstructing the investigation. It is NOT being asked to do this in exchange for compensation. (If the gov’t put out a Statement Of Need, and folks bid to produce what the gov’t asks for, and someone managed to actually crack the iPhone, then this problem goes away.) They are being ordered to do something by the government.

Wow.

The FBI Director, James Comey, said “we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.” Well, when you screw up in so many ways an investigation, I can understand that. Besides San Bernardino changing the password, the FBI also had that little fiasco with ending the “crime scene” status of the terrorists’ domicile so quickly – and apparently without actually gathering a lot of possible evidence.

So, government agents desire to further erode my rights because those same government agents are incompetent. That’s stunning. But, sadly, it’s not surprising for anyone who paid attention during the Cold War. I’m certainly getting a disturbing feeling of living in Eastern Europe, with fancier (for now) grocery stores.

AS a note, I didn’t get this done before Ace of Spades got to the topic. He’s a bit fuzzy on the matter, but he asks many of the same questions. (I lifted the warrant question from his thread.)

I am not a lawyer, and I’ve never played one on TV, but I do have some law courses (from long ago) under my belt, and a lot of familiarity with the Constitution. I am an Air Force veteran, and currently a contractor working with the military. I reside in the Old Dominion, though I’m looking to pack up and move somewhere less blue. (I was also a member of an Atari user group as a kid – I still have my Atari 400 – so normally if you want to talk up Apple, I would be ready to rumble!)

Postscript: I remember standing outside a burning house in our neighborhood when I was 4 or 5. My dad and a bunch of the other men in the neighborhood were rushing in and out of the house to save as much as they could, while others used hoses to try and keep it from spreading. The firefighters made them stop when they arrived, but their volunteer work did manage to save some of this family’s possessions and kept the whole neighborhood from going up. The ignition point was a bottle rocket, smoldering by the rain gutter, back in the days when everyone had shake roofs.

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16 Comments
  • Jodi Giddings says:

    GREAT post, GWB!

  • GWB says:

    I evidently screwed up the closing link tags in the paragraph that starts “The DoJ says…”. There are two links in there (the second one at “…chides them…”).

  • Deanna Fisher says:

    Fantastic post!!!

  • Whiskey Bravo says:

    I’m right there with you on a lot of this. And yes, it is absurd to order a company to create something (if indeed it can be created) to assist the police. However, there are legal grounds for being forced to assist the Police in general. The All Writs Act which is United States Code and was originally signed into law by George Washington as the Judiciary Act of 1789. It was used in the 1920’s and as late as 1977 to force cooperation with law enforcement officers pertaining to installing wire taps in New York.

    The issue here is definitely overreach by law enforcement and the courts–but where do you draw the line with acceptable assistance? When courts rule by precedent and NOT by each individual case (as the law was originally intended to be determined), then the Constitution and “righteous rule” are eventually nullified. Each case should be decided by its own merit and unique set of circumstances. Not by what happened somewhere else, at another time, with a different set of circumstances. My, how the mighty have fallen. . .

    • GWB says:

      Good point. I think this is different, in that the telephone company owns the lines and the warrant is applicable to their “possession” of the information.

      I wonder, given the current state of things, how a court challenge to that law would go? Would all the PC folks want the law struck down?

      • Whiskey Bravo says:

        Like I mentioned before–yours was a good article. I mentioned the AWA because few people are aware of it and it has potential to do some damage to our rights, when in the hands of a “living Constitution” judge.

        As for your comment about the phone company aspect of it, I agree which is why I mentioned what I did about precedent arguments in law. Precedent has been used in other AWA type cases that stray from the intent of the 1977 ruling. Also, this is a case that the FBI created through its own negligence and lack of foresight. They ordered the county to reset the phone which changed the password. Should a citizen or corporation be forced to correct a self-inflicted charlie-foxtrot by the FBI? As for the AWA in general, I see the need for it, but as I mentioned earlier–what about the limitations? This kind of law needs very, very specific limitations or it can turn ugly, fast.

        A broad interpretation of the AWA would run roughshod over our own personal rights. Luckily for us, the US government would never do that to us.

        Oh, wait….

        • Whiskey Bravo says:

          This is what I meant by precedent. The SCOTUS ruled (pertaining to the AWA) that:

          “The power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.”

          And while they left it to be a limited ruling–it was also left very vague in just how limited it should be. It didn’t seem to matter to them that the phone company owned the lines–only that the phone company knew how to do what Law Enforcement needed done.

          • GWB says:

            Very good information, WB. When we had a gov’t not interested in coloring outside the lines, this was perhaps safe. Now, not so much.

  • Whiskey Bravo says:

    That last line was a reference to 2 Samuel 1:25. The United States is taking a similar path to its own undoing.

  • Kate says:

    Thank you, GWB. Well said. 🙂

  • Toni Williams says:

    GWB- Very well written. love and kisses.

  • Nina says:

    Excellent thought-provoking brain hurting (in a good way) commentary! Thanks for writing this!

  • OC says:

    GWB, a great read!
    And I won’t hold you being a zoomie against you. Hoooooah!

    OC

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