Cyber-Civil Disobedience Next in the Apple v. FBI Battle?

Mar 21, 2016 | Blog

Apple’s lawyers have, in their final brief to the U.S. District Court of the Central District of California, described any effort to force engineers to create a weakness in iPhone security as “conscription.” The term conjures images of the Vietnam War military draft, and as in those long-gone days, some may well avoid “conscription” in the form of disobedience, a refusal to work on such a project. The consequences to engineers who refuse to work on the project may pale in comparison to the ramifications for Apple and, perhaps, for the government.

The New York Times reported on March 18, 2016, that a number of engineers interviewed for the article stated they may refuse to work on the project or quit their Apple jobs rather than comply with an Order adverse to the company. Indeed, with the demand for software engineers knowledgeable in security features at or near all-time highs, engineers who resign from Apple would probably have little difficulty finding alternative employment. This is a real possibility, said a former Apple engineer quoted in the Times article, who said “If the government tries to compel testimony or action from these engineers, good luck with that.”

The potential consequences for Apple could be devastating, which is no doubt why its lawyers argued in their brief that “Such conscription could pose a severe threat to Apple and its engineers.”  These actions could bring the case into undiscovered legal territory. The court could find Apple in contempt of its Order, and impose crippling fines (even for Apple), as it did on LavaBit when that company defied an Order directing it to divulge decryption keys to investigators seeking information on Edward J. Snowden. The fine levied on LavaBit was $10,000 per day, but LavaBit’s owner shut the company down rather than provide the decryption keys.

On the other hand, Joseph DeMarco, a former Assistant U.S. Attorney interviewed for the Times article, posited that if the engineers who could write the software that would bypass the deletion feature were to resign en masse, Apple could argue that compliance was not within its capability. But, DeMarco was quick to draw a distinction between engineers who resigned and those who stayed on but refused to work on the project. Such a refusal, he said, could tip the scales from inability to comply to contempt of court.

This case is proving to be novel in more ways that originally reported. Whether it makes good law, remains to be seen.

If you have questions on mobile device security and the impact of the Apple iPhone matter, please contact Kenneth N. Rashbaum.