Apple engineers, if ordered to unlock iPhone, might resist

“If the F.B.I. wins its court fight to force Apple’s help in unlocking an iPhone, the agency may run into yet another roadblock: Apple’s engineers,” John Markoff, Katie Benner and Brian X. Chen report for The New York Times. “Apple employees are already discussing what they will do if ordered to help law enforcement authorities. Some say they may balk at the work, while others may even quit their high-paying jobs rather than undermine the security of the software they have already created, according to more than a half-dozen current and former Apple employees.”

“The potential resistance adds a wrinkle to a very public fight between Apple, the world’s most valuable company, and the authorities over access to an iPhone used by one of the attackers in the December mass killing in San Bernardino, Calif. It also speaks directly to arguments Apple has made in legal documents that the government’s demand curbs free speech by asking the company to order people to do things that they consider offensive,” Markoff, Benner and Chen report. “‘Such conscription is fundamentally offensive to Apple’s core principles and would pose a severe threat to the autonomy of Apple and its engineers,’ Apple’s lawyers wrote in the company’s final brief to the Federal District Court for the Central District of California.”

“The employees’ concerns also provide insight into a company culture that despite the trappings of Silicon Valley wealth still views the world through the decades-old, anti-establishment prism of its co-founders Steven P. Jobs and Steve Wozniak,” Markoff, Benner and Chen report. “‘It’s an independent culture and a rebellious one,’ said Jean-Louis Gassée, a venture capitalist who was once an engineering manager at Apple. ‘If the government tries to compel testimony or action from these engineers, good luck with that.'”

Read more in the full article here.

MacDailyNews Take: Hey F.B.I., decrypt this:

Fuck the FBI

SEE ALSO:
Apple’s Tim Cook on FBI fight: ‘No one’s going dark’ – March 17, 2016
Harvard Law professor and former Obama special assistant dismisses FBI’s claims – March 17, 2016
Apple: The law already exists that protects us from U.S. government demands to hack iPhone – February 26, 2016

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

65 Comments

    1. What? If Apple does NOT direct its engineers to do the work, how can they be “thrown in jail.” If Apple DOES directs them to do the work, and they refuse, Apple can fire them (or reassign them to something else). And they quit in protest, the government can’t force them to work for Apple.

      Under what scenario do (non-leadership) employees of Apple get “thrown in jail for contempt.”

        1. The court order applies to Apple, the company, not individual employees. If Apple, the company, does NOT direct its employees to perform the task of intentionally making iPhones less secure, how can employees “go to jail”? If Apple DOES direct certain employees to perform the task of intentionally making iPhones less secure, and an employee refuses, the worst that can happen to that employee is being fired by Apple. And if an employee quits in protest, is the Federal Government jailing its citizens now for refusing to work for a particular employer?

          What actual SPECIFIC scenario puts a (non-leadership) Apple employee in jail for NOT intentionally making iPhones less secure.

          1. ken1w:

            You must have missed my post below.

            But first, have you even read the Court Order in its entirety? I suggest you do that first.

            —–

            Yes, employees of Apple can be compelled to labour. Or to do X. Slavery is a different matter all together. Slavery is being forced to work for someone for their own profit. Not the same thing.

            Second, the issue here is that employees could be compelled to do this under a Court Order. Also, senior employees, Officers, and Directors of a company owe the highest fiduciary duty to the business while they’re employed and effectively forever after. That means you don’t spill trade secrets while you’re working there or after you’ve quit. You don’t disclose private financial information. And so forth.

            If the company calls you for example, and they need a password or something and it’s mission critical, and you ignore them/fail to act, you could be found to be breaching your fiduciary duty to the company and be held liable for whatever damages result.

            In this case, if employees refuse to labour for Apple under Apple’s direction and Apple fails to comply with the court order, thereby putting Directors and Officers at risk of jail, those employees who refuse could be breaching their fiduciary duty to the company and putting it in harms way. They could be held liable for the breach of the Court Order. They may also be breaching their employment contracts which may have provisions for just these situations.

            Assume the Court Order will cover this. People in law aren’t stupid, ken1w. They’ll flesh this very stuff out and it’ll be covered by the Court Order.

            1. > People in law aren’t stupid…

              Apparently smarter than you. 🙂

              No court can just makes stuff up, and create a magical court order that can put people in jail for refusing to be an Apple employee. The judicial system does not create laws; they only interpret existing laws. A court order is a reflection of existing laws, not a tool of convenience to arrest people who don’t agree with Federal authorities.

              There will be NO situation where an Apple employee “goes to jail” for quitting (and deciding to work elsewhere). It won’t get anywhere close to that point precisely BECAUSE “people in law aren’t stupid.”

            2. ken1w:

              Your post isn’t advancing much of anything.

              The court isn’t “making stuff up”. It’s established law what I’ve referred to. Liabilities that fall on a corporation can and do flow to people (Officers, Directors, senior employees). This is a result of the corporate legislation in place.

              My example here is a hypothetical situation. If there was nobody at Apple who could do the work required under the court order, and it was one or a few former employees who could, and they refused to do it, the Court may compel them to do it, particularly if these were the same people who were part of purposely thwarting law enforcement’s ability to break into phones.

              I never said the court would. They would balance the interest to society with their ruling and the particulars surrounding the case.

              Apple may also petition the courts to make these former employees liable for their failing to comply with the Court Order due to their refusal. This simply may trigger an order against these individuals.

              But this isn’t a likely scenario.

              The employees in question may also have contractual obligations to help even after they’ve left. Applicable restrictive covenants may survive after termination. As they may also be deemed fiduciaries.

              I have personally had liabilities from a corporation flow to me and other Directors and senior employees. I was surprised to find that in the statutory regime and at common law, senior employees can also be enjoined: looked at as effectively identical to Directors and Officers in certain circumstances.

              Aside from this, compelling existing employees to program some things to allow access for the FBI is fully supported both by the common law and statutorily. The FBI has cited cases where the courts compelled people to program in things like wiretaps. The companies argued just like Apple, and they lost. The AWA and these cases are 100% valid.

              Apple realizes it has a weak legal position and is trying to make this about having the legislation changed and to get people up in arms over it.

            3. > I never said the court would…

              Then why are we having this discussion? I can make up “hypothetical” situations too. But in the real world, “contractual obligations” are between Apple and the employee. A court order is irrelevant. It’s up to Apple to take action against the employee, not the Federal government putting people in jail for refusing to perform labor against their will. And Apple will be sympathetic to an engineer who actually quits in protest.

              Of course Apple’s leadership can be held liable for not complying. In my previous posts, I always said “(non-leadership) employee,” which is the topic here, not Apple employee Tim Cook.

              There are limitations to what the judicial system can do. It’s called the separation of powers, between creating, interpreting, and enforcing laws. NO (non-leadership) employee of Apple is going to jail for quitting. You probably also believe unionized workers do NOT have the right to STRIKE against their employer’s management. Those striking public transit workers are causing chaos for commuters. Let’s think about the best “interest to society,” and rule accordingly. Just get one of those magic “court orders” and arrest them all!

            4. Ken:

              You’re misinterpreting and twisitng things.

              1. Apple could get a judgement and/or a court order against the employees if there’s applicable restrictive covenants that survive termination.
              2. The part about jail is that it is a POSSIBILITY, although one not likely, that the employees could be looked at as breaching their fiduciary duty and contractual obligations to the company. In this case, they may be treated like a Director or Officer of the company. Directors and Officers can have corporate liabilties flow to them. In this case, if Apple fails to comply with the Court Order, the Directors and/or Officers may be jailed. This liability may thus flow to the employees in question.

              Is it likely that this stuff would happen? No. Because Apple has people who can probably do this already on staff and people who probably wouldn’t quit over it. And the government could install its own workers as well.

            5. Geez, dswe, not only are you a totalitarian asshole, you’re also really good at just pretending to be an authority on something you clearly don’t understand.
              As pointed out above, the courts can’t just make things up, but apparently you can.
              Disclaimer: I AM an attorney, but not yours and definitely not of dswe, should he ever come to the U.S. and run afoul of the _actual_ laws of the country, not his fascist fantasies of what they are.

            6. > The part about jail is that it is a POSSIBILITY, although one not likely…

              > Is it likely that this stuff would happen? No…

              Is it likely that you are backtracking? Yes… 😉

            7. Maybe it can force the company’s employees, but they can quit and they are no longer employees. The government certainly can’t force them to work at a job where they’ve quit. The government might win this, although I hope not. But to you Apple employees out there who are going to take a stand, I leave you with a quote from The Boys in Company C, “you beautiful, disloyal f@cks!”.

              So proud of you, flip the the gov. the bird and walk. This government is out of control.

      1. The court could order the employees into servitude, type of slavery if you will, to create something for the government that doesn’t exist. This would be different than ordering someone to hand over something that does exist.
        Yes, the courts would be stepping way over the line doing something that it is not allowed to do, but that doesn’t seemed to bother them up to this point.

        1. Civics 101. Legislative branch creates laws. Judicial branch interprets laws. Executive branch enforces laws. Apple’s position in refusing to comply is that the FBI (part of the executive branch) is giving an unlawful order. And the court system cannot compel Apple to comply with an unlawful order, or one that is unconstitutional. But the has nothing to do with individual (non-leadership) employees of Apple.

          The court system can NOT order Apple’s “employees into servitude.” Enforcement of laws is in the purview of the executive branch, NOT the judicial branch. But what laws are being enforced here, that can possibly cause a “type of slavery”? Free PERSONS who refused to perform labor against their will are not breaking any laws; such laws would be unconstitutional.

          SO, what laws created by the legislative branch are being interpreted by the judicial branch, in a way that forces Apple to comply with the executive branch? THAT is the question. If there are no actual laws which force Apple to comply, then Apple can refuse. THAT is Apple’s position.

          1. You are assuming that many in the government are following the constitution, which they are not. Heck, just take a look at what the Senate is trying to do.

    2. This article is timely. It’s nothing for the government to worry about:

      1. The recalcitrant Employees can refuse to do the work, and Apple can reassign them or fire them;
      2. If Apple doesn’t order their employees to do the work, Apple would be held in contempt and Directors and Officers of the company could be jailed;
      3. There are many people who work at Apple, and this job requires around 10 people. It’s fantastic to assume and from this article as well that there aren’t people at Apple who believe in what the government is doing and would do this work;
      4. The Court in its Order could order employees or former employees, to conduct this work; and
      5. The Court could also Order that external engineers come to Apple hired by the government to do the work within the confines and security of Apple. This includes the full cooperation of Apple in terms of engineering documentation, access to code, etc., thereby requiring effectively no Employee of Apple’s and resting the responsibility back onto the company and its Directors and Officers

      So no, it’s not “good luck with that”. The Courts are the highest power in the land and can order companies and people to do many things. Good luck with disobeying them or thinking you’re smarter than them or trying to game them.

          1. It’s been around for a few months, you may very well be correct. The troll appears to cut and paste from a script of bullet points. Freakin’ idiot who doesn’t want the Bill of Rights to protect the citizens.

      1. no

        the FBI and DOJ are already infringing laws to force Apple to make a Hack OS

        as the other MDN article today recounts Harvard law professor and former Obama Aid Susan Crawford points out that FBI court order specifically breaks Communications Assistance for Law Enforcement Act (CALEA) regulations which states that Government bodies CANNOT:

        ““require any specific design of equipment, facilities, services, features or system configurations” from any phone manufacturer. ”

        as the professor point out : “does not allow the government to tell manufacturers how to design or configure a phone or software used by that phone — including security software used by that phone.”

        i.e the cannot make Apple write software.
        ——
        FBI and forcing Apple to comply under the guise of ‘fighting terrorism’ is pushing the government into the brink of dictatorship.

        1. Davewrite:

          Apple purposely thwarted law enforcement’s ability to break into the phone in 2014. You’re seeing the aftermath of Apple being unwilling to help law enforcement. Part of the case will hinge, mark my words and iCal me, on this issue. This is now a different case then what the Professor is referring to.

          The government will ask Apple to “undo” what it did to stop law enforcement from being able to break into the phone. The legal grounds will revolve around Apple “frustrating justice”. Further, that Professor hasn’t seemed to have researched enough American case law to save her life…

            1. silverhawk can’t debate, so he resorts to ad hominem again….

              dswe makes very good points and there is a good chance that the court could decide against Apple. we will look forward to silverhawk tucking his tail and moving to Canada if that happens.

              until then, I find it informative to understand the reasoning behind both sides of this case.

            2. dswe has been thoroughly refuted so many times on so many threads here at MDN that it’s hard to count.
              dswe asserts “facts” that are provably false.
              dswe interprets U.S. law in ways incompatible with U.S. Supreme Court jurisprudence.
              dswe consistently misunderstands the technical aspects of what is involved.
              dswe ignores the fact that FBI Director Comey admitted in sworn testimony before Congress that this is NOT just “about one phone” and keeps repeating the perjurious statement from earlier DOJ filings that tried to say it was just about one phone.

              dswe is a troll, or actually believes the proven-wrong nonsense he repeatedly spouts. Either way, a waste of everyone’s time.

            3. I don’t agree. dswe has been articulating the position that the FBI is using, and he has faced personal attacks. Being shouted down in a biased fanboi echo chamber isn’t in any way close to being refuted with facts. The facts will be revealed in court, not in this pathetic excuse for a forum.

          1. I think we have all been very patient here, but I think the Dear Leader is calling you to post on a North Korean forum where the government really does have the power to coerce individuals into working for a company against their will, and where companies can be retroactively punished for making law enforcement more difficult. You are so often wrong on both the facts and the law that I am through feeding the troll.

          2. Just to put that in context for those of you who downvoted me:

            I spent thirty years training and advising deputies in a rural Texas sheriff’s department. These guys met all the stereotypes, with high-school educations, beer-bellies, shaved heads, brown shirts, and mirror glasses. If I had ever encountered one of them who had the lack of regard that dswe has for basic civil liberties and the rule of law over “law enforcement at any price,” I would have recommended immediate termination and the Sheriff would have backed me up.

            The last straw was when he characterized the limit that Apple placed on incorrect log-in attempts in 2014 as “purposely thwarting law enforcement,” when the change was implemented because law enforcement agencies demanded it.

            1. So you think chumming it up with a texas sheriff makes you a legal expert on All Writs and CALEA, and gives you the permission to join the assholes on this site to attack reasonable points made up by dswe? No wonder Apple fanboys have such a bad reputation as being arrogant dickheads.

      2. The court would not be able to force ex-employees against their will – this is precisely the issue of the All Writs Act. The court can only compel people to comply in matters that are very limited in scope.

        Creating and protecting a new OS is not a small undertaking, cannot be limited to be effective for only one phone, and requires a very high degree of skill which makes it fall outside the purview of the All Writs Act.

        Plus the Legislature has already indicated that this is a public policy matter with larger concerns.

        Now if the government could pass a law that companies cannot use encryption or that companies must maintain a back door, then you could order compliance by a company.

        Passing such a law would be ridiculous and probably unconstitutional since the writing of code is considered free speech.

  1. If engineers resigned their jobs rather than comply with an odious court order, how does that constitute contempt of court?

    I’d quit if authorities compelled my company to write a virus, spyware, or anything like that, and the boss asked me to do the job. I’d be snapped up by other companies that see profit in encryption. Would the FBI go after them next?

    1. I have worked for the Federal government in the past and complied with their directives to the letter. In private practice, even more stringent privacy policies apply, and I’ve observed them too. But the Feds are getting dangerously close to hobbling the law of the land, just to suit themselves. That’s wrong.

      1. You just realizing that now? Heck this is still the aftermath of the second 9-11 and the crime against humanity against Iraq. That country has been purposely thwarting people’s right to privacy, amongst other things.

        Great posts by the way, keep them coming.

  2. If Apple employees refuse to work on this they cannot be compelled by the government. Slavery was abolished. And then Apple may truly claim they cannot perform what the FBI wants. Then the FBI will try to follow through on their demands for the source code. Another can of worms. Haven’t heard any legal opinions on that yet.

    1. Hiram:

      Yes, they can be compelled to labour. Or to do X. Slavery is a different matter all together. Slavery is being forced to work for someone for their own profit. Not the same thing.

      Second, the issue here is that employees could be compelled to do this under a Court Order. Also, senior employees, Officers, and Directors of a company owe the highest fiduciary duty to the business while they’re employed and effectively forever after. That means you don’t spill trade secrets while you’re working there or after you’ve quit. You don’t disclose private financial information. And so forth.

      If the company calls you for example, and they need a password or something and it’s mission critical, and you ignore them/fail to act, you could be found to be breaching your fiduciary duty to the company.

      In this case, if employees refuse to labour for Apple under Apple’s direction and Apple fails to comply with the court order, thereby putting Directors and Officers at risk of jail, those employees who refuse could be breaching their fiduciary duty to the company and putting it in harms way. They could be held liable for the breach of the Court Order. They may also be breaching their employment contracts which may have provisions for just these situations.

      1. Slavery is being forced to work for someone for their own profit.

        Nope. By that definition you just pulled out of your ass, any plantation owner who ever went broke was innocent of slavery.

        If you compel another person to work at your command under the threat of violence, you have committed slavery whether you make any money from that labor or not.

        -jcr

          1. I’m not one much for ad hominem attacks myself, and I the discussion did make me look at wiki’s view of slavery:

            “Slavery is a legal or economic system in which principles of property law are applied to humans allowing them to be classified as property, to be owned, bought and sold accordingly, and they cannot withdraw unilaterally from the arrangement.”

            There is that economic aspect of it so an interpretation of “Slavery as being forced to work for someone for their own profit.”

            Where I differ with dswe on this point (and I differ with him on nearly every point he makes) is that this situation indeed would be slavery as it would be forced work for the profit of a government, the operative being forced.

            One distinction though is the idea of slavery usually being forced labor. Writing code is more of an intellectual exercise, so slavery may not be as appropriate a word to use here. Now extortion on the other hand is pretty close:

            “Extortion (also called shakedown, outwrestling, and exaction) is a criminal offense of obtaining money, property, or services from a person, entity, individual or institution, through coercion”

            except that it’s a criminal offense, though I don’t that will bother your government too much. They’ll just wave some flag and a court order.

        1. John:

          No, I did not pull that out of my “ass”. There are multiple situations where something can be considered slavery. Slavery is typically being forced to work for someone for their profit. “Forced” meaning with the threat of violence and confinement

          There are different categories of slavery.

          1. CALEA explicity grants law enforcment, with warrant, to require that telecommunications companies do work to provide data to aid in an investigation. It also spells out that the telecommunications companies are compensated for their work in complying with the warrant.

            But the pro-apple trolls like silverhawk wouldn’t have bothered to read any part of CALEA. He probably can’t even find the full text of CALEA on the internet. All he can do is attack anyone who doesn’t agree with his ignorant views.

            1. Apple WAS helping, and DID try to help the FBI with the shooter’s iPhone. The FBI screwed up and ordered the iPhones owner to change the password to prevent another backup, the very thing Apple could have helped them with if the password hadn’t been changed. Whether ignorant or knowledgeably plotting, the FBI messed this up so badly its hard to imaging this wasn’t the outcome (forcing Apple and trying to set a precedent for future phone busting) they wanted all along.

      2. dswe said “Second, the issue here is that employees could be compelled to do this under a Court Order. Also, senior employees, Officers, and Directors of a company owe the highest fiduciary duty to the business while they’re employed and effectively forever after”

        no, once they are out of the employ of a company they are not responsible forever… When you walk away or are fired, you owe that company NOTHING, with the exception as you mentioned of protecting the companies trade secrets, and that is subject to only a short time depending on any non-compete agreements between employee and employer.

  3. Folks put this into perspective, this request is coming from an organization belonging to a country that started off as a slave nation, and currently views torture as legal.

    Resistance will be futile and short termed. Believe me after a weekend at the lovely Guantanamo on the Bay resort many Apple engineers will be begging to write code for the government.

    It might now even have to get to that as I’m sure some of the men in black will be showing up with compromising info to the engineers, information that the engineers won’t want to have public. A little coercion in the morning is like a workout before breakfast. If there is no such information, well a little side dish of slander just adds to the overall delight.

    I’ve pointed out the possibility that Apple may have to leave to a country of the free and civilized world, but that might not be a permanent solution as it would not surprise me to see representatives go to the United Nations and whine about a country having WMP (Weapons of Mass Privacy) until they decide to invade.

    I mean we are looking at the same country who is part of purposely thwarting the privacy of others as revealed by Snowden.

  4. I’m getting the idea that a lot of people in #MyStupidGovernment aren’t aware enough to realize they’re blundering around the edge of a black hole of totalitarianism. They’re insistent upon making life in the USA miserable.

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