In all the back-and-forth sabre rattling over the FBI's demand that Apple help it break into the iPhone used by one of the San Bernardino terrorists, there's one element no one has previously discussed -- Apple's engineers.
If the courts eventually rule that Apple must give the FBI access to the phone's contents, that's a chore that will presumably be handled by Apple's engineers, who may well be the only people on Earth who know how to reliably de-encrypt the iPhone.
But what if they refuse? What if they simply resign and walk away?
That's the possibility raised by The New York Times, which reports today that Apple's employees are already discussing what they will do if their employer is ordered to, in effect, become an arm of law enforcement.
It wouldn't be the first time individuals have refused to carry out the law because of their personal beliefs. Remember the county clerk who wouldn't issue a marriage license to gay couples, the nurses who won't participate in abortions, and all the other cases that have hit the headlines in recent years?
That's basically the argument Apple has made in its court briefs; it has said that forcing Apple employees to do things they find offensive amounts to a violation of their First Amendment rights.
If Apple is finally ordered to comply with the government's wishes and the engineers then refuse or resign, the government is back where it started. It would have to start over and pursue legal actions against all of the engineers who designed the encryption methods used in the iPhone, assuming it could learn their identities.
The Times noted that Apple CEO chief executive Tim Cook made that very argument in an email to customers, writing that “The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe.”
In that email, Cook noted that Apple has in the past provided information the FBI requested when it actually had the information in its possession.
But in this case, the information exists only in the shooter's iPhone. Cracking open that iPhone would involve creating a "backdoor" that would provide access to everyone's iPhone, exposing millions of consumers to invasion of privacy, financial skullduggery, and even physical harm, Cook said:
"Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession."
Apple said it would take six to ten engineers up to a month to meet the government's request but said it would be difficult to ramp up to build what it is calling "GovtOS" if key employees refused to do the work.
Meanwhile, another group of engineers would have to build software to be used by the FBI to access the iPhone's back door. Since many of these engineers would likely be the very ones who had worked on the original encryption system, it's not likely they would be very eager to undertake the task, the Times noted.
Some might recall that it was no lesser power than the Supreme Court that, in the Citizens United decision, held that corporations are essentially people and thus endowed with inalienable rights to give money to super PACs.
Could be, but corporations -- virtual people if you will -- can't do much if the real people who make up that corporation refuse.