Apple says U.S. ‘Founders would be appalled’ by DOJ order

“Apple Inc. charged Tuesday that a court order forcing the tech giant to assist the federal government in unlocking the iPhone of San Bernardino terrorist Syed Farook was based on non-existent authority asserted by the Justice Department,” Kevin Johnson and Elizabeth Weise report for USA Today. “‘According to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up,’ Apple lawyers argued in new court documents. ‘The Founders would be appalled.'”

“The company rejected the government’s previous contention, characterizing the court order as ‘modest’ and relating to a ‘single iPhone,'” Johnson and Weise report. “‘Instead, this case hinges on a contentious policy issue about how society should weigh what law enforcement officials want against the widespread repercussions and serious risk their demands would create,’ Apple lawyers argued.”

Johnson and Weise report, “‘This case arises in a difficult context after a terrible tragedy,’ Apple contends. ‘But it is in just such highly-charged and emotional cases that the courts must zealously guard civil liberties and the rule of law and reject government over-reaching.'”

Read more in the full article here.

MacDailyNews Take: “Appalled” is putting it mildly.

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. – Benjamin Franklin, Historical Review of Pennsylvania, 1759

[Thanks to MacDailyNews Readers “Judge Bork” and “Arline M.” for the heads up.]


  1. The Patriot Act: that was over reach.

    But the constitution is clear, even without the Patriot Act, this has nothing to due with what the President is “demanding”. The law is clear, search warrant and subpoena legally pursued and executed are how the courts and law enforcement get private information.

    You must change the constitution. The President must follow the law. DOJ must follow the law.
    You need to think about what it would do to past cases as well, where the government has used warrant or subpoena…
    you’ve got 50 states to go, have at it, change the constitution, that’s legal… good luck.

    Just a heads up, when you buy a lock from home depot or lowes, the keys … ask somebody…

    Apple’s lawyers on this case are just making money. They know what disorder this would cause. The Supreme would have rule the government has no right to view what may be considered private information.

    There is no expectation of privacy with these phones Apple owns the software, Apple can view the data, Apple can change the software on it, every Apple iPhone user agrees.

    Like a lock, there is a key, Apple has the key.

    1. What?! If I can understand your attempt at English properly, you’re saying it’s Apple who’s being disingenuous in this case? Clearly NOT. If you understood the US Constitution you’d notice that Apple is entirely correct and following the law. It is the FBI and DOJ who insist on breaking the law.

      Apple does NOT have ‘the key.’ What’s being requested is that Apple CREATE a key that would remove a couple locks, of many, that are on the iPhone. The FBI would then be free to use their computers to perform a ‘brute force’ password attack on the device until they’d broken in and could look at the contents. IOW: ‘The key’ does NOT exist. It’s actually KEYS that the FBI is requesting that Apple INVENT.

      Is that clear enough?

        1. How about the First Amendment just for starters.

          The U.S. Government has no right to force you to say something differently than you have. Because there is a lot of precedence for software being considered “speech”, software falls under the right to write software that says and does what you want it to do and say.

          How about the fifth amendment.

          The U.S. Government has no right to force you to say something that is directly detrimental to yourself in any legal system (the essence of not being a witness against oneself). Again, since software is speech under U.S. legal precedence, the FBI is pressuring Apple to write software that will be detrimental to Apple in many, many legal cases both within the U.S. and without. How will it be detrimental to Apple, legally? Just think of all the lawsuits in the suit happy U.S. that will happen once this new variant of iOS gets used improperly (either by governments without a warrant [it WILL happen] or by hackers getting a copy of the code [once in government hands it WILL happen]). (And don’t try that crap that “This is just for this phone only.” No one with more than one active brain cell truly believes this is a “one time only” thing. Once the software is known to exist many, many governments will be filing legal action to get their hands on it.)

        2. Could you shut your trap for once silverhawk? I would very much like to hear both sides of the argument in a civil discussion. BOB and dswe and Tx User are bringing very insightful stuff — you never do.

        3. I personally would much rather read what silverhawk1 has to say than anonymous cowards ‘BOB’, ‘dswe’, ‘Tx User’ or ‘Paul’ have to say. For all I know, these people are One-In-The-Same and their only point is to berzerk others and receive back flames and anger, for their own masochistic purposes. IOW I wish for love, understanding and kindness among people who are so inclined while chastising people of the opposite inclination by suggesting that they STFU and fsck off. So there.

        4. First Amendment.

          An individual may not be compelled, by the government, to say or write anything unwillfully.

          Computer code is considered speech by the courts in this country. Forcing developers inside Apple to write code against their will is in fact unconstitutional.

        5. Thanks for at least repeating Apple’s argument on the matter.

          While it’s an interesting argument, there are arguments against this. The constitution is not completely absolute (e.g., random police roadchecks, military conscription). The courts balance the interests of society with whatever case is at bar.

          Further, it may be found that there is no violation of free speech rights as engineers employed by Apple are commissioned in their duties to write software that the company, and not them, directs. The Court Order compelling the company Apple to comply with its terms may also be viewed by the courts as valid and not infringing any “speech rights” of a corporation.

          On another note, I would urge everyone to read the 43 page DOJ repsonse to Apple. It is a compelling document with an excellent treatment of the law.

        6. Oh look. Anonymous coward ‘dswe’ has decided to imitate ME, after I pointed out that he hadn’t bothered to do any research on the subject… until of course I chastised him to do so.

          Who do you work for dswe, or are you an amateur waster of other people’s time and reading efforts?

          Summary: 💤💤💤

        7. No dswe, wrong. The fact that the Constitution gives the government the right to search this phone with a valid warrant does not give it the right to force a third-party to write new software to help break the encryption. We have this thing called the First Amendment that prohibits forcing someone to write something they disagree with. We have this thing called the Thirteenth Amendment that prohibits forced labor. We have this thing called the Fourteenth Amendment that requires giving Apple due process. We have various provisions that prohibit the government from taking property (physical or intellectual) from someone without paying just compensation, (i.e. the fair market value of the thing taken, which in this case could be in the hundreds of billions of dollars).

          Please SPECIFICALLY cite what legal authority (apart from the contested applicability of the All Writs Act in this context) the government might have to insist on enforcing this order.

        8. Thank you for your post (Derek too). Good to hear both sides of the argument for people who have a bit of depth into the law. Well I know you do and Derek is someone I highly respect here.

        9. Yes TxUser.

          Cases have already been tried and decided on these VERY ISSUES. Some examples:

          1. Mountain Bell, 1980.
          2. Re Application of the United States, 1979.

          The courts faced arguments from the comapnies, JUST LIKE Apple’s. In the end, computers had to be programmed by the companies to wiretap, etc.

          Arguments were extensive from both sides.

          There is case law from SCOTUS and a criteria set to decide these matters.

          Arguments from Apple are weak:

          1. To day the AWA is old and dusty is false and absurd. The age of a law does not on its own mean in any fashion the law is irrelevant. How old is the constitution? Right. Also, the AWA has been used many times over the years for multiple things. It’s valid and allows the courts to exercise its authority accordingly.
          2. Apple claimed no other time has any company been compelled to force labour like this. The government showed this to be FALSE with specific case law, some cited above.
          3. Apple used hypothetical arguments about what might happen in the future and engages in slippery slopes about possibilities in the future. None of which are quantified by third party experts.
          4. The government quoted a reference to Apple’s marketing where they brag about the security of the iPhone being impervious to law enforcement from 2014. That Apple purposely did this. Apple may now have to undo what it did. There is also evidence that Apple was unlocking and accessing data on iPhones multiple times prior to this. It’s contradictory for Apple to now make these claims about not wanting to help law enforcement when they did many times in the past. The point is that they thwarted law enforcement, and that is now the specific problem.

        10. I don’t have to cite the three sections of the US Constitution violated by the FBI’s demands. Apple did that already in their Motion to Vacate. You might try reading it and learning what you’re talking about for a change. Oh look. I know how to post references:

          … And you don’t. Therefore, who cares what you have to say? I hope that’s helpful.

        11. Derek:

          Yes, I do know how to cite. Scribd was only showing a few pages of this document and required sign up to view the rest. So all a person has to do is Google it.

          Second, Apple’s arguments about constitutional infringements are weak and effectively without merit.

      1. If you have a problem with the english, ask a question, Derek Currie.

        The “Key” in this cases involves allowing the entrance and by-pass of a feature Apple has built. The FBI is not asking Apple to decrypt the any data.

        This is like a locked safe. The lock has a bomb attached, designed by the manufacturer of the safe.This bomb will destroy the papers inside if not disabled.

        It is not unreasonable to ask the manufacturer if there is a master key and to ask to use it. If there is not master key it is not unreasonable to ask the manufacturer to help by disabling the feature they built. Most people believe if you build something you understand what you built. It is not unreasonable to ask the manufacturer for the schematics, design, for the safe. Now here’s the thing the manufacturer says no. So far no over reach right. The FBI then goes to court to have the court review the request and order the manufacturer provide the information. No over reach there either. They, the FBI, is using correct and accepted procedures to obtain the information. The FBI, reports to the people of the nation, through Congress, it’s intent and actions. No over reach there.

        What do you think “Contempt of Court” is all about? It’s about an entities will verses the court’s will. You can be compelled to do things against your will or be imprisoned. You must think, Contempt of Court” is just TV court drama.

        You must expect Apple to be able to use the fifth amendment… The engineers to use the fifth amendment? nope, not applicable. That’s why Apple’s lawyer are not using it.

        1. Dear Anonymous Coward “BOB”:
          You certainly like to blahblah.
          – Your English is clumsy, to be kind.
          – You don’t understand exactly everything that Apple is being asked to write for the FBI, apparently because you don’t care to understand it. You said:

          “It is not unreasonable to ask the manufacturer if there is a master key and to ask to use it.”

          There IS NO master key. Wake up and READ the plentiful details online about exactly what the FBI wants from Apple. Stop pretending you know what you’re talking about then blowharding your way around the net with your ignorance.

          – There is NO ‘Contempt of Court’ even remotely involved in this case. Contempt of the US Constitution! Yes indeed. Both the FBI and the Department of Justice have IGNORED the First, Fourth and Fifth Amendments to the US Constitution. You don’t have to be Barack Obama, ‘Professor of Constitutional Law’ to comprehend that what’s being asked of Apple is blatantly unconstitutional from beginning to end. The contempt is all on the government’s end of this nonsense.

          – And AGAIN you’ve proven, via your last paragraph, that you couldn’t be bothered to read Apples Motion to Vacate. So STFU and go fap off somewhere, little anonymous coward. You’re not going to make it among the thoughtful and insightful. Your laziness and fatuousness are far too clear.

    2. Speaking of the constitution and upholding it – appointing a new supreme court justice to re-lace a dead one is what the constitution calls for, but you probably have a way of denying that too becuase the wrold is flat and there is no global climate change crisis eother, right?

  2. How many Apple enthusiasts would want the Constitution fully observed? How many know that Barack Obama said he didn’t like it because it placed “negative limits” on the power of the central government?

    1. I want the US Constitution fully observed, of course.

      I have no comprehension of how Barack Obama, a ‘constitutional scholar’ and professor could demand ignoring three amendments to the US Constitution. He clearly is. However, I’ve never read any quote from him saying the US Constitution placed “negative limits” on power of the central government. A reference with that quote is required to back up your statement.

      1. Below is a quote from Obama with his view of the weakness of the Constitution. Obama by the way is not and never had been a Constitutional expert. He was a guest lecturer not a “professor” at University of Chicago. He was the only Harvard Law Review Editor to publish zero. He is and has been a socialist activist. Community organizer. Dressed up Al Sharpton.

        “The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it’s been interpreted, and [sic] Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”

        1. The paragraph you cited does not support the proposition you cited it for. He did not say that the Constitution was weak, only that it operates more to define what government cannot do than what it must do. It is extremely strong at defending liberties, but deliberately vague in defining what public policies future generations might choose to implement by statute. Obama sees that as a good thing, not as something he does not like.

          I wish people on both sides of this debate would stop putting words into the mouths of those they disagree with. If you want to criticize what someone said, at least take the trouble to read them in context, rather than relying on soundbites and journalist’s quotes.

        2. Ah, that’s very useful to read in context. It’s not as was portrayed in your previous message.

          Regarding ‘Constitutional Law Professor’, this is one analysis of that claim:

          Obama a Constitutional Law Professor?

          A: His formal title was “senior lecturer,” but the University of Chicago Law School says he “served as a professor” and was “regarded as” a professor.

          I know that within academia, people are incredibly jealous of their titles. I can understand why there would be contention over his use of the term ‘professor’ to describe himself. It takes many years and a lot of work to obtain a full, official professorship at a university.

  3. The Founding Fathers wouldn’t have time to be appalled because they would be fighting their own battle to get out of prison after being pepper-sprayed, handcuffed, beat up, and thrown in jail for subversion.

    1. from what i read, the American colonials did face prison and torture from the British

      thankfully they sent Franklin to France to round up some French allies, and little Roi George was defeated!

  4. So how many commenters here went to law school?
    Of that group, how many actually deal with Constitutional issues on a regular basis?
    No, most criminal defense doesn’t count.

    1. UT Law 1974. Took the Supreme Court Seminar of Charles Alan Wright, perhaps the greatest expert on Federal law in his generation. Took Constitutional Law with Lino Graglia, a Scalia look-alike. Dealt almost daily with search and seizure law, including its constitutional dimensions, as a prosecutor and police legal adviser, from 1981 to 2010. Speaker on “constitutionalist” extremism to the Texas Sheriff’s Association. Addressed constitutional issues in lectures for the Texas County Auditors Association.

      Next question?

        1. I have no idea how this is going to play out. My guess is that the District Court will try to split the difference, knowing that both sides will appeal, and issue a stay on its order until all the appeals are settled.

          Ultimate resolution may depend on who has the ninth vote on the Supreme Court when this case gets there, as it probably will. If I had to guess, it would be that all the courts will try to limit the applicability of their decisions as tightly as possible to avoid the slippery-slope disasters that either wholesale adoption of the government position on the All Writs Act or wholesale adoption of a “search-free zone” policy would entail. To the extent possible, they will base their decisions on statutory construction and dodge the constitutional issues.

          PS, I forgot several lectures to the Texas JP and Constable Association in the list above, BUT I will admit that I am a little rusty at all this since I retired. Do not take anything I say as legal advice, since I am not currently licensed to practice law.

        2. Thanks for your input and yes I realize the constraints you are putting on your comment, i.e. they are your opinions.

          I agree that there is a good chance this case will reach the Supremes unless the FBI withdraws and finds another way to open up that iPhone (rumors that the NSA could do it are showing up).

          I think what is new and exciting about this case is the “search-free zone” concept that I’ve equated with a non-searchable object, something new as a result of technology that has not been conceived by previous legal concepts.

          At any rate, I’ll be watching with keen interest and I’m sure I won’t be the only one.

          Thanks again.

        3. Thanks for your insights on this, TxUser. I think we agree on most things pertaining to this case. But there is definitely a lot of conflicting law over the years as technologies have created new dilemmas. The concept of an unsearchable possession would be completely unimaginable to the writers of the Constitution. Now we have Apple proposing that it has created just that.

          Where we may disagree is that I don’t believe Apple. All encrryption, and all password systems, can be broken. If Apple created it, Apple can break it. Apple is trying to set a legal precedent, and I wish them luck. I just don’t buy the argument that Apple can’t unlock iPhones.

  5. Oh please this so much fluff, and actually kind of disappointing to see Apple do this.

    “According to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up,” Apple lawyers argued in new court documents. “The Founders would be appalled.”

    The founders would not be appalled, a good number of them were slave owners and when you are a slave owner that’s exactly what you do, order private parties to do virtually anything.

    This is not a good approach Apple, heck, it might inspire them to reintroduce slavery. It’s be one heck of an improvement above torture.

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