Judge: Order to compel Apple to write ‘GovtOS’ has been ‘unenforceable’ all along

“On Monday, less than 24 hours before the hearing was scheduled to start, the US government asked to cancel its big court date in the Apple vs FBI fight,” Sarah Jeong reports for Motherboard. “The judge convened a quick conference with the Department of Justice and Apple attorneys. A transcript shows the judge repeatedly emphasizing that the order to compel Apple to create a backdoor for the government is ‘unenforceable’ and has been so since the court battle began weeks ago.”

“It’s hard to tell how the hearing-that-never-was would have actually gone. But on Tuesday, Cryptome published the transcript to the conference that happened right before the judge granted the government’s request to cancel the hearing,” Jeong reports. “It shows the judge pushing back — gently — against the government, while the government backpedaled on the aggressive stance it had taken against Apple in its filings.” “”

“Is the government retreating from the San Bernardino iPhone fight because its lawyers think the judge is likely to rule against them? It’s possible,” Jeong reports. “After a flood of amicus briefs and unprecedented media attention on a magisterial proceeding, Judge Pym might be having second thoughts about the order she issued on February 16.”

Read more in the full article here.

MacDailyNews Take: Judge Pym likely had quite the rapid and rude awakening after issuing her ill-considered order.

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

Why a future Apple-FBI case may go very differently – March 23, 2016
Zdziarski’s take on the FBI’s ‘alternative’ method – March 23, 2016
Apple won Round 1 vs. U.S. government overreach; what comes next? – March 23, 2016


  1. And to the rabid Trey Gowdy – Read this and weep you inbred.

    On March 1, in a hearing before the House Judiciary Committee, Rep. Trey Gowdy (R-SC) blasted Apple for flouting the law, by not complying with Magistrate Judge Pym’s order. The judge’s own remarks—while not directed at Gowdy—serve to rebutt him.

    1. “I certainly don’t think, let me just comment, that Apple’s been flouting the order,” said Magistrate Judge Pym in the meeting on March 21. “The order, essentially—it isn’t—pending a final decision, there’s not really—it’s not in a stage that it could be enforced at this point.”

  2. When you know you can’t win, you cancel the game.

    While Apple won this round, they need to be vigilant. The government scum-bags will be back when they have more ammunition on their side. This privacy fight is a long way from being over.

    1. When you know you can’t win, you cancel the game.

      Ideally. But in politics the general rule is:

      When you know you can’t win, CHEAT.

      The FBI were caught cheating. I suspect this continuance is in part a way for the FBI to save face, gracefully bow out, live to wreck the US Constitution another day.

  3. 1) happy for apple
    2) appalled by how the FBI/Doj ran the whole thing

    e.g: went to Press before informing apple
    contradicting themselves in statements that differ from court and Congress e.g : it was a mistake to have reset the password/it was not a mistake… we have one phone/we have many phones… it’s not a precedent/it might set a precedent… etc.

    3) Parade of Clowns showed up. ‘Dormant Cyber Pathogen DA’, various politicians from both sides who shall remain nameless to avoid a flame war.
    The sherif that said that he would lock up the rascal Tim Cook for not obeying a court order, what does he say now? Rushing to conclusion before hearing the other side, scary to think what the dude does with his GUN, “I always shoot first before checking.. ” ?
    With Law Enforcement abilities like those shown in this whole sorry episode from Dormant DAs, to abusive FBI to clueless sheriffs and Lawmakers, it’s really depressing …

    4) It’s scary to think what a lesser force than Apple and Tim cook , like some company with weaker resources, would have suffered at the hands of the FBI . How many poor sucks have been coerced by them? It shows well oiled well used almost reflexive behaviours…

    5) did the judge have second thoughts when Harvard Law Professor Susan Crawford wrote a scathing article saying that the FBI had no case because of CALEA regulations, plus the amicus brief of 32 prominent law practitioners ?

    the brief starts like this:
    “The Government has gone to great lengths to sidestep due process in its effort to avoid judicial scrutiny of the merits of its case. And for good reason: its case lacks merit.”…. “

  4. This is exactly what happens when someone with morality and integrity stands up to a bully and justice is served. This certainly isn’t over by a long shot but now, there are less heads in the sands, so maybe, just maybe the people or a certain nation will wake up and realize just how much their nation has fallen.

    Then again, there is still a way to rock bottom.

    Davewrite, that’s a beautiful post putting it all into perspective.

  5. The language of the transcript is very amusing. We’re used to the strict, disciplined legalise of court documents or TV courtroom drama scripts. But, surprise, all concerned talk in the same stumbling, halting, barely coherent valley-girl-ise we’re used to out on the street:

    – you know
    – I mean
    – sort of
    – really
    – I guess
    – (stuttering)

    Then there’s the same old disingenuous rhetoric from the government:

    …The Government has really only been interested in trying to get into this phone and has done all of its filings and all of its work here in an effort to get into this phone and not saying anything nefarious about Apple.

    LIE. Apple’s lawyer responds:

    MR. BOUTROUS: Your Honor, if I could just add — I didn’t mean to interrupt, but — I respect Ms. Wilkison greatly and the office greatly, but just on page 2 of their reply and opposition brief they declare Apple’s rhetoric is not only false, but is corrosive of the very instititions that are best able to safeguard our liberty and our rights. It’s those kind of statements that, if you are a company, law-abiding, good corporate citizen, those kind of things in a public record from the United States based on an order that is now shown that one of the key components of the order, the necessity prong, is up in the air, I would request that the Court do something along the lines I suggested earlier. It would be greatly appreciated.

    (Bolding mine).

    Let’s be clear that the court WILL hear the FBI’s status report on April 5, ‘And then — and then we’ll just go from there.’ Therefore, this is NOT over.

  6. Where are alll your neocon friends like that 2014 fellow or that sputnik dude?

    Neocon politics are bad for you.

    Of course, you could just elect that neofascist Trump and our security worries would be over.

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