Patricia A. Donahue, Tracy L. Wilkison and Allen W. Chiu, the Assistant United States Attorneys who want Apple Incorporated to hack it’s own product, the iPhone, filed a motion yesterday to compel the tech company to obey.
The motion is oblivious to the ever diminishing influence of former Associate Justice Louis Brandeis on American law. Brandeis, for whom the university in Massachusetts was named, remains one of the most quoted of all Supreme Court Justices. “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding,” Brandeis warned. “Experience teaches us to be most on our guard to protect liberty when the government’s purposes are beneficent.”
Brandeis may be most famous for a few lines from his dissenting opinion in a 1928 wiretapping case called Olmstead v. United States. “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness,” Brandeis warned the America that might someday be. “They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.”
Donahue, Wilkison and Chiu spit on your steenking “right to be let alone.”
Comply Or Else
They accuse Apple of being greedy for refusing to do what they want, which is to provide a way for nosy policemen and petty despots everywhere to defeat the encryption features on Apple’s smart phone. The government wants to rummage through the contents of a company phone used by dead San Bernardino terrorist Syed Rizwan Farook. Farook and his wife Tashfeen Malik, murdered 14 people and wounded 22 others last December 2, 2015 in San Bernardino, California. It was almost certainly a terrorist act of jihad on behalf of Muslim fanatics on the other side of the globe. Farook and Malik destroyed their personal phones and computers before they died. It is possible but unlikely that the phone the government wants Apple to hack contains information pertinent to either the couple’s personal jihad or the ongoing jihad against modernity and Western Civilization at large.
The government thinks it should regularly be allowed to invade any private space, tangible or metaphorical, if it only first cries the magic words “national security.” And it thinks it would be a trivial matter for Apple to act as the government’s accomplice. In a motion filed last Tuesday, the government lawyers explained that they were merely asking Apple to modify its operating system. “Modifying an operating system,” the government argues with the great, glacial serenity of a psychopath, “writing software code is not an unreasonable burden for a company that writes software code as part of its regular business. In fact, providers of electronic communications services and remote computing services are sometimes required to write code in order to gather information in response to subpoenas or other process.”
The government motion’s basis in case law rests on a 1977 Supreme Court decision in the matter of US v. New York Telephone Company. The government wanted to wiretap a bookie and the phone company refused to help. Justice Byron “Whizzer” White, writing for the majority, thought that New York Telephone, “a highly regulated public utility with a duty to serve the public, was not so far removed as a third party from the underlying controversy that its assistance could not permissibly be compelled by the order of the court based on a probable-cause showing that respondent’s facilities were being illegally used on a continuing basis.”
In their dissent, Justices Stevens, Brennan and Marshall argued that “for one who thinks of federal courts as courts of limited jurisdiction, the Court’s decision is difficult to accept. The principle of limited federal jurisdiction is fundamental; Never is it more important than when a federal court purports to authorize and implement the secret invasion of an individual’s privacy.”
The government’s motion plays broadly to the mob. “Apple’s current refusal to comply with the Court’s Order despite the technical feasibility of doing so instead appears to be based on its concern for its business model and public brand marketing strategy,” the government’s lawyers write. “Apple appears to object based on a combination of a perceived negative impact on its reputation and marketing strategy were it to provide the ordered assistance to the government, numerous mis-characterizations of the requirements of the Order, and an incorrect understanding of the All Writs Act.”
There are 35 pages of this calumny and it is already working. Yesterday afternoon Presidential candidate Donald Trump called for a boycott of Apple products. “Boycott Apple until such time as they give that information,” Trump told an audience in Pawley’s Island, South Carolina near Myrtle Beach.
“Apple ought to give the security for that phone, Okay, he continued. “What I think you ought to do is boycott Apple until such a time as they give that security number. How do you like that? I just thought of it. Boycott Apple.”
“The phone’s not even owned by this young thug that killed all these people. The phone’s owned by the government, Okay? It’s not even his phone. But (Apple CEO) Tim Cook is looking to do a big number, probably to show how liberal he is. But Apple should give up, they should get the security or find other people.”