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

• http://www.fastcompany.com

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.

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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.

Apple could be held in criminal contempt of court for defying the order signed by Judge Pym. This legal mechanism is often used when no amount of civil coercion (like monetary fines) can make the party in question comply with the court's demands," Fu explains. Courts can use this non-monetary punishment on journalists who refuse to divulge their sources, for example. The goal isn't to compensate an injured party, but rather to "punish the target party and to vindicate the authority of the court," Fu says.

If the case goes all the way to the Supreme Court, and Apple refuses to comply with a demand to adhere to the Pym order, then things get a little crazy. "Under these circumstances, there is a universe of possibilities where Tim Cook could actually go to jail for refusing to comply with a lawful order of the court," Fu says.

"This is because Apple has already publicly declared that it will not comply with a court order to unlock the iPhone," Fu says, "and as such, necessarily forces the courts to favor punishment over coercion."

How It Could End Up At The Supreme Court

Chances are slim that the case even gets heard by the Supreme Court, and slimmer that Apple would be held in criminal contempt before the court, but that outcome is within the realm of possibility.

Here's how Apple's dispute with law enforcement could find its way to the High Court.

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