[Photo Sources: Flickr User Alex Smith, courtesy of Apple]

From Fines To Jail Time: How Apple Could Be Punished For Defying FBI

If Apple refuses to help the FBI unlock San Bernardino shooter Syed Farook’s iPhone, a universe of penalties in various courts are possible.

By MARK SULLIVAN

The fines and punishments that Apple could face by continuing to defy the FBI’s demand that it help unlock the iPhone of San Bernardino shooter Syed Farook are considerable, even by the standards of one of the richest companies in the world.

Many of the possible penalties are discretionary to the court where the dispute is currently being heard. The case, at least for now, resides in the U.S. District Court for California’s Central District. If Apple openly defies or ignores the demands in the order signed by Magistrate Judge Sheri Pym, the court would most likely wield a civil contempt-of-court charge as the mechanism to coerce Apple to comply, explains Cooper Levenson attorney Peter Fu in an email to Fast Company.

The court could also mete out civil punishments like fines. If such penalties aren’t regulated by a statute, they have to be based on precedent, Fu says.

FROM MONETARY PENALTIES TO JAIL TIME

“The issue of whether this matter is regulated by statute is ambiguous, as the DOJ has argued the matter under the All Writs Act, an arcane body of law which broadly allows courts to issue writs, subpoenas and orders,” Fu says. “Whether the DOJ’s use of the All Writs Act [is upheld] will largely determine whether monetary penalties could be imposed.”

Apple attorney Theodore J. Boutrous Jr. told the AP Tuesday that the tech giant will challenge the government’s use of the All Writs Act, as well as suggest that the whole matter would be better handled by Congress.

If the All Writs Act theory is allowed to stand, the federal district court can determine any reasonable amount deemed necessary to move Apple to comply with the demands in the order. “That could result in fines in the hundreds of thousands to millions of dollars,” Fu says. The problem in this case is that there’s just no clear precedent. Estimating possible penalties is difficult because it will be largely up to the discretion of the court.

Some legal experts believe it would be proper to base fines in the Apple case on the Communications Assistance for Law Enforcement Act of 1992. Under CALEA, fines are capped to $10,000 per day, but the fines keep accruing until a final determination, if a subpoena is challenged.

One possible guideline may come from a case in which the government threatened to fine Yahoo $250,000 a day if it refused to hand over user data to the National Security Agency, says Electronic Frontier Foundation staff attorney Andrew Crocker. And the size of the daily fine was set to double every week that Yahoo refused to comply.

Those are all possible civil penalties, but the court could also assign penalties associated with criminal cases.

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