Apple has decided to fight an unprecedented and highly controversial order by US Magistrate Judge Sheri Pym that the company has to assist the government in breaking into one of its encrypted phones. Apple says that it does not have the technology and does not want to be part of such an effort to create a privacy stripping tool for the FBI. Pym seems to believe that she can order companies to become unwilling participants in surveillance research and development. I fail to see her legal basis for such an extraordinary order against a private company.
CEO Tim Cook said the order by US Magistrate Judge Sheri Pym “has implications far beyond the legal case at hand.” He said that the company cooperated with the FBI “But now 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.”
Pym has gone far beyond what I consider the scope of her authority. Indeed, her actions appear almost legislative in nature. Congress has not ordered such back door access to be supplied by companies and such a move would raise difficult privacy questions. It would also conflict with some other countries that have balked at the effort of the Obama Administration to strip phones of privacy encryption protections. The phone in question is tied to Syed Farook and his wife, Tashfeen Malik, killed 14 people in a Dec. 2 shooting at a holiday luncheon for Farook’s co-workers.
Adding to Pym’s controversial decision was the fact that Apple was not even allowed to participate in the proceeding on Tuesday. Pym simply ordered the company to give her an estimate of the cost of its involuntary work for the FBI. That misses the point. Pym cannot order companies to become effective partners with the FBI in developing new technology.
Pam’s order raises chilling constitutional questions that should be fully reviewed by a federal district court judge and an appellate court. The implications of this order could be breathtaking for private businesses and citizens in my view. It is worth a public debate over privacy protections and the right of the government to force companies to develop new technology or systems against their will.
Pym is a former prosecutor who was appointed as a United States Magistrate Judge in 2011. She served as an Assistant US Attorney and Chief of the Riverside branch office of the United States Attorney’s Office, doing mostly criminal prosecution work. She graduated with a law degree is from the University of California, Los Angeles School of Law.
Reprinted with permission from JonathanTurley.org.