One of the big problems with NSLs is that you can't let anyone know that you've received or acted on one, so there's very little accountability.
Hence the recent trend of some companies including a warrant canary on their websites, under the assumption that a NSL can't prevent you from _not_ saying something (e.g. deleting the canary).
So for it to work, you need to issue a statement every month that says you haven't been issued a NSL, and then simply not issue a statement the month you finally were issued a NSL. That would then require the government to actually compel speech (compel you to post a new notice saying you didn't receive a canary).
Of course, the above should make it blatantly obvious how absolutely absurd the blanket gag order on NSLs are.
So, by compelling Apple to code something that doesn't exist, the government would indeed actually be compelling speech.
So, I'm not sure what the value is of a clever argument that compelling Apple to comply with the order here is "compelling speech" is supposed to be (likewise, the upthread one about NSL canaries.)
On a separate note though, I've always thought it would be interesting to see a member of Congress be issued a NSL and then have them read it on the floor of the House/Senate (since they have parliamentary immunity for anything they say on the floor of the House or Senate).
I'd maybe call the bluff, and take my political stand.
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.
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.
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.
> 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.
What happens if Apple says they aren't paying these unjust fines? Theoretically, court order, law, or what-have-you, Apple can just straight refuse to participate (and hopefully other big tech companies would follow suit).
Sure the gov't can make arrests, threats, seize assets -- but in the end, the gov't still don't get what they want (but they do get a ton of very, very bad PR in the process). At a point, the gov't would have to stop -- destroying the world's most valuable company, and one of America's sweetheart companies, all over this... wouldn't play out well.
Then they'll be subject to additional penalties, seizure of property, etc., and quite possibly shareholder lawsuits stemming from the decision to incur those losses.
> Sure the gov't can make arrests, threats, seize assets -- but in the end, the gov't still don't get what they want
Maybe, given the recent discussion of mandatory limits on encrypted communication services without up-front backdoors, what the government wants is a clear demonstration that the operation of those services interferes with evidence and intelligence gathering in terrorism cases to build the case for new laws restricting the operations of such services.
I wasn't trying to imply this at all - of course the government can destroy companies.
What I was implying is that, given the past few years of heightened public awareness of domestic government programs and efforts, perhaps this time public pressure would be exerted on the government to lay off the issue. Apple is one of the most loved companies in the country, people would be very interested in knowing why it's suddenly being torn down.
A company like Apple, which is practically an icon of "everything America still gets right," would be a very politically dangerous target to go after.
People would want to know why their favorite company was drawing a hard line, hopefully lead to a more educated debate.
We couldn't possibly expect this to take place as it would imply huge fallout for Apple. The only real course of action is to keep up the public debate in a loud way.
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.)
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.)
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.
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.