I was describing what is supposedly the routine manner in which such an order is drafted. Ordinarily copies of all motions, responses, and so on, including all proposed orders, would be filed and delivered to all legally involved parties in a timely and orderly manner in accordance with all published local court procedures.
I am not aware of what happened in this particular instance. If Apple somehow was not informed, then as I have indicated previously, you do not need a Master’s in biochem to tell when a dead fish smells fishy— or something like that (with apologies to all biochem majors).
So far as I am aware, court procedure when properly followed gives advance notice to all directly affected parties who can be reached by business street addresses so long as they are a party (plaintiff or defendant) to the litigation duly registered with the court for the case under the docket. I am not sure why Apple was not duly notified by the court of an order that directly affected it. Offhand I cannot think of any reason why it should not have been registered with the court as being a party to the litigation if it is going to be ordered to compel production of a document and especially production of live object code for a state of the art handheld device. I must be missing something. I am not a lawyer and I imagine there may be a way in which this could be done legally without direct notification of the primary affected party. However, if I were the judge, it would be very, VERY suspicious to me if I were asked to issue such an order without due notification of the court’s hearing and filings pro and con.
This seems to me like a prima facie case of denial of due process, in addition to various BoR violations as Apple claims in the news headlines. Again I have not had any opportunity to read the filings and I am not a lawyer. So maybe I should not even write anything at all here or anywhere else about it, lol. Just *%&&ing in the wind for now, I guess, until someone knowledgeable about such matters comes along and clarifies the situation for us all... we really need some more lawyers around here. The convention is that the guys in the trenches usually just short-ship the stuff to comply with the quarterly mgmt schedules, and then get to be the fall guys for the next batch of problem tickets, lol... :-)
This case was shopped. There is a political aspect to this. The Obama administration met with parties involved last fall and agreed to back off on legislation on requiring backdoors into mobile devices. Then, it's reported, Obama and Lynch called a secret meeting over the Thanksgiving weekend of the Homeland Security departments and told them to bring pressure in clandestine ways. . . through regulation and through the courts because it was obvious that Congress was NOT going to give them what Obama wanted.
This is NOT about anything on this phone. The likelihood there is NOTHING incriminating on it. It's too damn easy to erase an iPhone back to Factory clean condition in about five minutes without having to smash it. I think that Farook kept it only for it's GPS capabilities during the escape. It was found in the Black Lexus SUV.
But the "OPTICS" of this case make it ideal for the Obama administration's campaign to get the public to give up its privacy rights. High profile terrorism case, 14 murders, more people wounded, Grieving family members, FBI claims they NEED to put this to bed because there may be more terrorists out there plotting another violent attack, a locked iPhone and an unbreakable encryption. So they get a magistrate judge to rubber stamp a prepared court order, despite the fact that Apple has been cooperating all along, claiming Apple has NOT been cooperating, demanding that Apple has to write a backdoor into the security of "just this one SUBJECT DEVICE" But they don't tell Apple and the tip off the press BEFORE the apply for the Court Order, and once they get it, issue a PRESS RELEASE claiming they got a Court Order because Apple WOULD NOT OFFER its help! Simultaneously the head of the FBI is Tweeting about it. Apple learns about it from the news just as they are being served!
It's a lot more emotional than a drug-dealer in New York they tried it on in New York and got no where especially after the drug dealer pleaded guilty, making the search of his iPhone 4S moot. There, the judge was strongly leaning toward Apple's arguments.
Apple asked that arguments be placed under SEAL. The FBI not only objected, they PUBLISHED theirs BEFORE they filed them. This is a publicity campaign to drum up a public pressure and to obfuscate the actual facts. The FBI lied about several material facts to both the COURT and the PUBLIC. They only admitted under pressure that Apple had been working with them all along. . . and that they only grudgingly accepted Apple's offer after they blew the AppleID password to the iPhone.
The FBI set this adversary situation up, not Apple.
Speaking of due process, here's something else that Apple is saying that I also said, having to do with being hauled into court to prove that the iPhone backdoor software works and releasing it to the defense in any criminal trial: Footnote #24:
"Use of the software in criminal prosecutions only exacerbates the risk of disclosure, given that criminal defendants will likely challenge its reliability. See Fed. R. Evid. 702 (listing requirements of expert testimony, including that "testimony [be] the product of reliable principles and methods" and "the expert has reliably applied the principles and methods to the facts of the case," all of which a defendant is entitled to challenge); see also United States v. Budziak, 697 F.3d 1105, 1111-13 (9th Cir. 2012) (vacating order denying discovery of FBI software); State v. Underdahl, 767 N.W.2d 677, 684-86 (Minn. 2009) (upholding order compelling discovery of breathalyzer source code). The government's suggestion that Apple can destroy the software has clearly not been thought through, given that it would jeopardize criminal cases. See United States v. Cooper, 983 F.2d 928, 931-32 (9th Cir. 1993) (government's bad-faith failure to preserve laboratory equipment seized from defendants violated due process, and appropriate remedy was dismissal of indictment, rather than suppression of evidence)."
Basically, the courts have held the defense gets to see the software, and even investigate how it works. . . and have hands on, unfettered. Oops. No more secret.