[iamdave]

IANAL, but how is it a subpoena if it doesn't originate from the judiciary?

[berkeleynerd]

Nicholas Merrill famously fought a 11 year legal battle (and finally won) the right to reveal all aspects of a National Security Letter (NSL) served to him. Almost all such letters are accompanied by a complete gag order.

https://www.calyxinstitute.org/news/federal-court-invalidate...

EDITED / CORRECTIONS - Thanks commenters - The battle was won by Nicholas Merrill not Ladar Levison of Lavabit fame as I originally posted.)

[uxp]

It was Nicholas Merrill from a little ISP called Calyx Internet Access that famously challenged the NSL process.

LavaBit's Lamar Levinson is assumed to be under a gag order from some request he was given by the US government, of which he declined by way of folding his company and claiming that he could not comply moving forward if he was no longer the middleman of some form of communications.

[schoen]

As a further correction, the Lavabit founder's name is spelled Ladar Levison.

Rather than making assumptions, you can read about the specific kinds of legal process involved in the Lavabit case at

https://en.wikipedia.org/wiki/Lavabit

You can also read the Fourth Circuit decision on his appeal, among other things.

[baddox]

I guess you can argue semantics, but it's an order accompanied by a credible threat of violence if the order is not obeyed.

[aback]

I know it requires Tim Cook to be willing to martyr himself, but do we really see Obama whisking the CEO of Apple Computer off to Guantanamo or some supermax prison?

I'd maybe call the bluff, and take my political stand.

[ThrustVectoring]

Cook wouldn't have to go that far. The court order specified Apple, not Tim Cook personally. He can simply resign instead of following the court order. For that matter, so can the engineers that Apple would need to work on this project.

[aback]

That's interesting.

IANAL but seems like you're missing something.

Apple can simply let Employee B take Employee A's place after A quits. When the authorities come for B, B can quit, and Apple can re-hire A.

Apple never has to comply.

[ThrustVectoring]

Employee A doesn't have to actually quit, they just have to credibly threaten to. Say, by signing an open letter that says that they'd quit before helping backdoor the iPhone. Apple can then claim that they cannot bring together a team that is willing and able to backdoor that iPhone.

When you break down the process of having a private company comply with an order to create a particular piece of software, there's many failure points.

The counter from the governmental side is "we will give your company massive fines until and unless your company complies".

As a note, the actual text of the court order (https://www.documentcloud.org/documents/2714001-SB-Shooter-O...) explicitly says that Apple can appeal it on grounds that it is an unreasonable request. Uncooperative engineers can make it an unreasonable request, and have the legal right to be as uncooperative as they want to be in this case. And, they're on the same side as the CEO of Apple ethically, so it isn't career suicide.

[baddox]

> The counter from the governmental side is "we will give your company massive fines until and unless your company complies".

At which point is becomes worth it for Apple to pay an engineer to do the job. I doubt it wouldn't take much of a bonus to get someone to do it.

[dragonwriter]

If an order is directed to Apple, and Apple fails to comply, the court can order sanctions against Apple for contempt.

The authorities don't have to "come for" any person (they might follow up with orders directed at particular persons, in which case those persons would be at risk of personal sanctions, as well.)

[baddox]

I presume it would just be significant fines, or perhaps some FCC or FTC regulations that would harm Apple's business.

[ipsin]

https://en.wikipedia.org/wiki/Administrative_subpoena