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.)
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