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DOJ “Compromise” Changes Absolutely Nothing
The Department of Justice has filed a motion to compel Apple’s compliance with last week’s unprecedented order requiring Apple to create hacking technology to assist in the criminal investigation of the San Bernadino terrorist attack.
In its motion, Apple offers a “compromise” of sorts, in that it offers that Apple can keep secret the technology it is being ordered to create. It seems that this offer is intended to quell the public outcry over privacy rights implicated by the court order
Unfortunately, what the DOJ fails to recognize in making this compromise is the order does far more than implicate privacy rights. It undermines basic underpinnings of American law and society. The order embraces the concept that the government can co-opt private enterprise and force it to divert its resources to government purpose. This is called nationalization, and we do not allow it in these United States of America. It just isn’t done.
The DOJ claims that all it is asking is for assistance in executing a warrant; it is doing far more than that. It is not asking a landlord to unlock the door to an apartment for which it has a warrant. It is asking Apple to invest untold amounts of money and resources into developing a product which does not at this time exist.
The DOJ attempts to paint Apple’s business as somehow insidious and untoward. It states in its motion that “Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which” is relevant to the investigation. The DOJ says this as if it is a bad thing. Yes, products built privately do control; and no, the government (which is really what the DOJ is referring to when it uses the word “law”) does not control. That is how it is in this great country.
To allow what is essentially the nationalization of Apple, even if limited to a specific purpose in this particular order, is to open the door to an entirely different way of life in the United States. This is not an overstatement. There are countries in the world where this is the standard, but we do not live in one of those societies.
Some members of the public perceive that the data the DOJ seeks will somehow identify other terrorists and unveil other terror plots. However, in its motion the DOJ says that the phone is believed to contain communications with the terrorists’ victims. That is much different than the phone potentially uncovering useful information to protect national security and dramatically undercuts any notion of Apple’s refusal to comply somehow endangering society.
The DOJ must see the difficulty in winning public support for the order in light of privacy rights, but this compromise fails miserably to address the real problem here. There is no compromise that can address it.
(As an interesting post script for all lawyers who have ever come across an unpublished opinion that they wish they could cite but did not because court rules generally prohibit it, the DOJ unabashedly states in its motion that it “is aware of multiple other unpublished orders” in support of its position. The DOJ’s lack of respect for the rule of law apparently knows no bounds.)
DOJ “Compromise” Changes Absolutely Nothing was originally published on Lawyerist.com.
Source: https://lawyerist.com/102466/doj-compromise-changes-absolutely-nothing/
