Forcing Apple into Government Service
The FBI wants Apple to help it break into the phone used by the terrorists in the San Bernardino shooting. Apple said no. So the FBI got a court to force it to comply. Apple says it will appeal, citing a host of privacy issues it says are too big to ignore.
Judge Andrew Napolitano has looked at the case and finds it appalling a judge would ask Apple to break into a phone. His reasoning is rather interesting:
...the DOJ has obtained the most unique search warrant I have ever seen in 40 years of examining them. Here, the DOJ has persuaded a judge to issue a search warrant for A THING THAT DOES NOT EXIST, by forcing Apple to create a key that the FBI is incapable of creating.
There is no authority for the government to compel a nonparty to its case to do its work, against the nonparty's will, and against profound constitutional values. Essentially, the DOJ wants Apple to hack into its own computer product, thereby telling anyone who can access the key how to do the same.
If the courts conscripted Apple to work for the government and thereby destroy or diminish its own product, the decision would constitute a form of slavery, which is prohibited by our values and by the Thirteenth Amendment.
Yet, somewhere, the government has the data it seeks but will not admit to it, lest a myth it has foisted upon us all be burst. Since at least 2009, the government's domestic spies have captured the metadata—the time, place, telephone numbers and duration of all telephone calls—as well as the content of telephone calls made in America under a perverse interpretation of the FISA statute and the Patriot Act, which a federal appeals court has since invalidated.
The DOJ knows where this data on this killer's cellphone can be found, but if it subpoenas the National Security Agency (NSA), and the NSA complies with that subpoena, and all this becomes public, that will put the lie to the government's incredible denials that it spies upon all of us all the time. Surely it was spying on the San Bernardino killers.
We get it: the shooters may have information on the phone that could be valuable to prevent future attacks and/or help the FBI discover others plotting similar attacks.
But we also agree with Judge Napolitano that the government has no right, and no power, to force any company to do its bidding -- particulary when it appears the government may already have everything it needs, and more.