The controversy around the attempts by prosecutors in California to ask a judge to make Apple “unlock” a cell phone seized from a guy who participated in a mass murder last year in San Bernadino, Calif., has a nice flavor of kindergarten school playground to it.
“Oh, ya? Make me!” is what Apple is kind of saying to a judge who has indicated he will force Apple software engineers to work hard to come up with a way to allow prosecutors to get into the cell phone info bank of the seeming terrorist.
Easier said than done.
Apple says this is all private. Customer-seller confidentiality/promise agreement.
DA and judge say nope, this is a criminal matter involving a murder investigation; all bets are off the table; everybody is a potential subpoenable witness.
Interesting discussion. An intellectual field day for law professors who like to “sit around all day examining their navel,” as my late mother would say.
The first issue was Apple saying – we are not allowed to help the government.
Second issue was Apple saying – even if we were willing to help the government, we don’t know, golly gosh, if we are capable of doing so.
The DA and the government said (in unison): “B.S!!”
That is where it stood.
Until the latest development; the government now says it may have been able to find some “people with technological expertise (teenaged hackers, I say!) who have agreed to help the government try to unlock the phone.
Some say this is an easy issue; all the Apple people have to do is fake it and say, “We tried, couldn’t figure it out,” etc.
The response from career prosecutors is – nice try; we will file a motion in court asking the judge to hold you in contempt. A hearing will be held. The Apple engineer(s) will testify. We will have a government techie expert testify. The government expert will explain to the judge what is needed, will say Apple is certainly capable of doing the work, and will then say it is clear to the government expert that Apple is just intentionally dragging its heels, and not cooperating.
What would the court do?
Probably find the Apple employee in contempt.
And then the matter could go (easily) to the U.S. Supreme Court.
Apple would appeal. It would claim important confidentiality issues, and also some First Amendment issues. There would also be claims of “economic confiscation;” making Apple work for no pay, etc.
How would the court rule?
It would be split 4-4. (Another reason to get Justice Scalia’s replacement on the court to break the tie!).
It all reminds me of kindergarten. Somebody tells somebody else to do something. The second person doesn’t want to do it. The world-famous, time-honored mantra: “Oh, ya? Make me!”
Make me, indeed. Stay tuned.
Dan Warren is a Scarborough trial lawyer. He can be reached by private Facebook message at the Jones & Warren Attorneys at Law page, or by email at jonesandwarren@gmail.com.
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