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Apple Resists The FBI’s Draft

If the federal court system were an airline, district judges would be the pilots, and magistrates - who sometimes flaunt the title “magistrate judge” like a professional epaulet - would be the ticket counter clerks.

If you become entangled in the federal court system, your first contact is apt to be with a magistrate, just as that ticket clerk greets you at the airport. The clerk asks if you packed your own bags and issues you a boarding pass; the magistrate may set bail, if you are accused of a crime, and may ask whether you understand the charges against you.

We do not expect ticket clerks to set a plane’s course, and we do not - or at least we should not - expect magistrates to issue sweeping orders that can affect entire U.S. industries, along with millions of people around the globe.

But guess who it was that ordered Apple to stop resisting the FBI’s efforts to draft the company into the surveillance state’s efforts to create a “back door” that would circumvent encryption on your late-model iPhone?

That’s right; it was a magistrate. Sheri Pym, who wears the aforementioned title of magistrate judge, sits in the U.S. district court for the central district of California, in Riverside. Pym is a former federal prosecutor, presumably accustomed to working closely with the FBI. Before that, she pursued contingency fees as a class-action lawyer for Milberg Weiss in San Diego.

Unlike district judges, who in accordance with Article III of the Constitution are nominated by the president, are confirmed by the Senate and hold their seats for life, magistrate judges are appointed by the district judges in their district. The magistrates relieve Article III judges, as they are known in the courthouses, of a lot of low-level scut work. This does not mean they are not excellent lawyers in many cases. They can be thoughtful, fair-minded jurists. District judges sometimes use magistrates as “special masters” to determine the facts and make preliminary rulings of law in complex cases - but the final word always rests with the district judge.

Pym was appointed to her current post in 2011. Nothing in her publicly known background suggests that she is particularly prepared to make sweeping decisions involving civil liberties and national security. But that is exactly what she did - without benefit of a trial - when she ordered Apple to supply software at the behest of the FBI to circumvent the encryption features of an iPhone that was used by one of the San Bernardino terrorist shooters. Pym’s courtroom in Riverside is only a short drive from the site of those shootings, so it is understandable if she was particularly susceptible to the FBI’s claims that unlocking Syed Farook’s work phone is critical to its investigation of the case.

That claim is, at best, questionable. Farook and his wife took care to destroy their two personal cell phones; they did not bother to touch his county-issued model. The two claimed publicly that they were inspired by the so-called Islamic State. The entire U.S. national security apparatus has not, so far as we know, developed any evidence that anyone overseas directed their attack. The FBI’s claim of necessity is based on the fact that Farook used his work phone to - surprise! - talk to co-workers, some of whom were among the attack’s victims. And, about six weeks before the shooting, someone (maybe Farook, maybe someone in San Bernardino County’s tech department) turned off the phone’s automatic backup feature, which would have copied its data to the cloud.

Oh, and on at least one occasion, Farook called his wife and co-terrorist on that phone. Maybe it was to discuss their attack, but since they also were a genuine couple with a six-month-old baby, and since they already had personal phones that they took care to destroy, chances are it was to find out whether he should pick up milk and bread on his way home from the office. Terrorists need groceries too.

The FBI and others in the national security community have been desperate to pressure Apple and other tech companies into providing a back door into their customers’ devices. According to The Wall Street Journal, the Justice Department believes that Apple already possesses the technical means to bypass built-in security features, though Apple CEO Tim Cook said outright that such software does not currently exist. Tech companies have so far resisted such government pressure, including a run-of-the-mill drug case involving Apple that is ongoing in Brooklyn, New York.

The government’s pressure appears to be part of a coordinated strategy to take advantage of situations that seem to bolster law enforcement’s demand for tools to overcome device-level encryption. After the government failed in its attempt to legislate company-installed back doors, senior national security officials ordered various agencies to look for ways to counter encryption software such as that which protects the iPhone. According to Bloomberg, a National Security Council memo formalized an approach that included developing methods to bypass companies’ encryption and identifying laws that may need to be invoked or altered in order to get investigators the information they want.

So the FBI is using the high-profile San Bernardino case to set a precedent and try to force Apple’s software designers to compromise their own product. The legal basis for this is, the government claims, a federal statute called the All Writs Act. The statute was passed by the very first Congress, in 1789. The act, as you might expect, says nothing about cell phones or encryption. It simply says that the federal courts can issue “all writs necessary or appropriate... and agreeable to the usages and principles of law.” In the Justice Department’s view, and apparently in the view of a certain magistrate in Riverside, California, this language means the judicial equivalent of a ticket clerk can order anyone to do anything she wants.

Cook noted that the order requires his engineers to provide “something we do not have, and which we consider too dangerous to create.” His argument may or may not prevail on the company’s appeal; what is certain is that if the basement level of the federal judiciary succeeds in forcing Apple to take this step in this case, the feds will have succeeded in getting through the courts something they have not thus far been able to obtain in Congress, which is a legal mandate for access to everyone’s information. Apple and other vendors note that any back door will inevitably be exploited by bad people for bad purposes.

Attorney General Loretta Lynch is ultimately responsible for the FBI’s aggressive approach to this and other cases. She is also likely to be on President Obama’s short list of candidates to replace Supreme Court Justice Antonin Scalia. When and if such a nomination gets a hearing in Congress, Lynch ought to be asked to explain exactly why she thinks law enforcement should be able to get a magistrate to force anyone to do anything.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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