The FBI and the DOJ are full of mierda in this litigation. As a former Asst. DA I am sympathetic with law enforcement's difficulties but also with the individual rights guaranteed under the Bill of Rights, including the 4th and 5th Amendments. This case, when you look at it closely, is not directly about individual rights, it's about the government's abuse of power to bully businesses. The facts of the case do not warrant requiring Apple to create a soft ware solution for them to be able to remotely access the data stored on the cell phone. The FBI has the iPhone. The FBI can break into the iPhone on their own or hire an expert to do it. It's pretty simple. Even if the phone is protected by a security code or password the FBI can physically break into the phone, remove its hard drive, create an image of the hard drive and then search it. They do this with personal computers all the time. They can do it with an IPhone.
Instead the FBI is trying to get the Court to order Apple to access the iPhone's hard drive remotely. Why? Because they want a court order to use as precedent against Apple in cases where the FBI wants to access the data on a cell phone of alleged terrorists/criminals BUT the FBI doesn't have possession of the phone.
The FBI has calculated that a terrorism case like the San Bernardino shootings is a sympathetic fact situation, which can be used to pressure the Court into a broad ruling and to pressure Apple to cave, EVEN THO in this case the FBI doesn't need to access the phone remotely. By rights, there should have been a gag order in this case preventing the FBI from politicizing it but the judge refused to impose a gag order. The facts of this case do not justify a need for a broader order requiring Apple to remotely access the San Bernardino shooter's phone.
If the San Bernardino shooters had a Ford vehicle suspected of being used somehow in the terrorist acts or conspiracy to commit the terrorist acts and the FBI had possession of that vehicle, the FBI would not require Ford to get forensic evidence from the truck. It would hire experts or use its own forensic experts to get the information directly from the vehicle The FBI can do the same with the cell phone.
If the court exceeds it jurisdiction and issues the order the FBI is requesting, the FBI will attempt to use this case as precedent to bully Apple to remotely access phones of suspected terrorists or criminals, to procure the data from these phones.and to provide it to the FBI. THAT IS RIGHT! THE FBI ISN'T ASKING THE COURT TO ORDER APPLE TO PROVIDE THE FBI WITH THE PASS CODES AND/SOFTWARE TO REMOTELY ACCESS DATA ON IPHONES. INSTEAD IT IS ASKING THE COURT TO ORDER APPLE TO REMOTELY ACCESS THE DATA ON IPHONES AND PROVIDE THE DATA OBTAINED FROM THE IPHONE TO THE FBI.
If Apple is forced to do this every time law enforcement says they need remote access to an iPhone, which belongs to suspected criminals or terrorists, Apple will need a full time staff of experts not only to remotely access the iPhones and procure the data but also to testify about it in hundreds, if not thousands, of cases across the country. Since Apple accessed and procured the data on the phones, an Apple employee would have to be present at and testify in each case re: how Apple accessed the data and what data they procured. That is ridiculous. Furthermore, Apple won't do it. Instead they'll change the iPhone design so as to eliminate all back doors into iPhones. Rumor is that they're already factoring this change into the design of their next iPhone.
So as a practical matter this litigation will be of no use in the FBI's prosecution of the San Bernardino shooter AND will likely be of little to no use to the FBI in the future. Apple's response to this litigation, however, will likely cause significant inconvenience consumers in the future. Why? Because in response to this ridiculous and costly litigation Apple is sure to design future IPhones in a way that will not enable Apple to access the new IPhones remotely thru a back door. As a result, however, Apple will not be able to continue to automatically download minor software updates to consumers' iPhones. Instead, consumers will have to initiate the downloads themselves every time there is even a minor software update.
The federal government is wasting government money on this litigation and forcing Apple to waste shareholders' money on this litigation The litigation costs are not the only waste of shareholders' money Apple will incur. Apple also will incur costs to develop and implement the changes in the new iPhone's design to eliminate all back doors into new iPhones. Meanwhile, the government will accomplish nothing helpful to its prosecution of the San Bernardino shooters, the alleged purpose of the litigation brought against Apple.
Clearly, the FBI and the DOJ know all of this! So why are they proceeding with this costly litigation? Obviously, the FBI is trying to bully tech companies, i.e, their executives and Boards of Directors, by demonstrating that it will waste taxpayers' money, smear their companies' names in the media and waste their companies' money defending litigation if their companies do not cooperate with the FBI. The FBI for some time has tried unsuccessfully to bully Apple into building a back door into Apple's operating systems, which the FBI could access freely. This litigation is part of the punishment the FBI and DOJ are inflicting on Apple for protecting its customers privacy by not agreeing to build that back door for the FBI, DOJ, DHS, DOJ, CIA, etc... This litigation is just another example of the government's abuse of power and abuse of not only taxpayers' money but also in this case investors' money.
Josh Newman @Joshua_Newman 10m10 minutes ago