Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”—Abraham Lincoln, Message to Congress in special session, July 4, 1861.
Do you want the government to have unlimited access to the data in your cell phone—your personal record, health record, financial record, contacts, girlfriends, lovers, pictures, telephone numbers, and everything about you that is stored in your cell phone, on the pretext that the government has reason to believe you are or might be a terrorist? If you die, do you want the government to have access to your cell phone since you are dead anyway and have no more rights? Is the government using strong-arm tactics to violate the liberties of the people? Will the government cease to exist if it cannot gain access to your cell phone? The Obama government wanted to gain access (some call it “hack” which means access without authorization), to the contents of the Apple iPhone of the alleged gunman in the San Bernardino massacre which left 14 people dead. The cell phone had a feature that would lock out any user who made 10 unsuccessful tries to open it without using the correct passcode or would erase the iPhone’s data after too many unsuccessful efforts to access it. The government asked Apple to create a device to bypass or disable this feature, because they wanted to find out the killer’s contacts. Apple refused, citing privacy concerns. Apple said it is not its duty to act as an agent of the government and that it did not want to breach the trust of its customers.
The government sued Apple in a California federal court, asking that Apple be ordered to assist law enforcement agents by providing technical assistance to assist law enforcement agents in obtaining access to the date in the cellphone. The court ordered Apple to comply, citing the All Writs Act, a 1789 law codified in 28 U.S. Code § 1651 which provides that “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Case No. ED 15-0451M, 02/16/16.
Apple challenged the order, saying it was “neither grounded in the common law nor authorized by statute.” Apple’s President, Tim Cook, said “We have great respect for the professionals at the FBI and we believe their intentions are good,” but the government has asked for something we do not have and something “we consider too dangerous to create. They have asked us to build a backdoor to the iPhone. Most of the technology world has supported Apple, including, reportedly Google, Facebook, and Microsoft.
Recently, the government found someone who could unlock the alleged killer’s iPhone without destroying its contents. The person was reportedly paid about $1.3 million. What did the government find? Nothing. The alleged killer did not make any calls to other terrorists before, during, or after the attack. Does that end the controversy? No, there are hundreds of cellphones in government hands that they wish to unlock. The government is not certain whether the one who unlocked the alleged killer’s phone can unlock the remaining cellphones. Apple and/or the cellphone’s owners would likely resist unlocking their cell phones. Will we allow the government to spend millions of taxpayers’ money to forcibly unlock cellphones without a lawful court order and then find nothing? Congress should stop this.
What should you do? If you want to protect your privacy, you can fight any attempt to unlock your cellphone without lawful authority. You can look at New York Magistrate Judge James Orenstein’s Order denying the government’s motion under the All Writs Act to open a cellphone of a suspected drug trafficker. The Judge said that “the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to issue an order under the AWA: the closeness of Apple's relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; and the necessity of imposing such a burden on Apple.” The concluded “that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will.” Case No. 15-MC-1902 (JO) (E.D. NY), 02/29/16. https://assets.documentcloud.org/documents/2728372/Orenstein-Order.pdf
(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has also a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.MilitaryandCriminalLaw.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with retired Manila RTC Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)